COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Viscomi, 2014 ONCA 879

DATE: 20141205

DOCKET: M44414 (C57211)

Laskin J.A. (In Chambers)

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

Marco Viscomi

Applicant

Edward Greenspan and Brad Greenshields, for the applicant

Richard Kramer, for the respondent

Heard: November 13, 2014

On application for judicial interim release pending the appeal from the committal order of Justice Kenneth L. Campbell of the Superior Court of Justice, dated May 24, 2013, with reasons reported at 2013 ONSC 2829, 115 O.R. (3d) 606, and the application for judicial review of the surrender order of the Minister of Justice, dated October 17, 2013.

Laskin J.A.:

[1] Marco Viscomi applies for bail pending his appeal of the order committing him for extradition to the United States, and his application for judicial review of the Minister’s surrender order. The Attorney General of Canada opposes the application for bail.

A. Background

[2] The United States has alleged that Viscomi, using manipulation, extortion and threats of violence, coerced two sisters, aged 13 and 17 and living in Virginia, into performing sadistic sexual acts with each other in front of a webcam while he watched and captured images on his computer for his pleasure. The webcam session took place over Skype[^1] in the middle of the night of January 5-6, 2012, and lasted about an hour and ten minutes.

[3] Viscomi was arrested under the *Extradition Act* on August 9, 2012. He applied for bail pending his committal hearing. On August 16, Benotto J. denied bail. Although she recognized that Viscomi had the loving and devoted support of his parents, she concluded that there was a substantial likelihood he would reoffend and that the protection of the public required his detention. Viscomi has been in custody continuously since Benotto J.’s order.

[4] The dates of the committal and surrender orders are as follows:

• May 24, 2013: K.L. Campbell J. orders Viscomi’s committal for extradition.
• October 17, 2013: The Minister orders Viscomi’s surrender.
• November 12, 2014: The Minister refuses to reconsider his surrender order.

[5] In the United States, Viscomi will face charges relating to child pornography and child luring, and, if convicted, mandatory sentences of up to 30 years in jail.

[6] The appeal and judicial review materials are all available. Thus the hearing before this court can and should be held no later than early spring 2015.

B. The Application

[7] This application is brought under s. 20 of the *Extradition Act*. Section 20 states that the bail pending appeal provision of s. 679 of the *Criminal Code*, with any modifications the circumstances may require, applies to judicial interim release pending appeal of a committal order and judicial review of a surrender order. Viscomi must therefore satisfy three criteria. He must show:

• His appeal is not frivolous;
• He is not a flight risk; and
• His detention is not necessary in the public interest.

[8] The main criterion that is modified in the extradition context is the public interest criterion.

[9] Viscomi submits that he has met all three criteria for bail and should be released on the stringent release plan put before me. The Attorney General of Canada submits that Viscomi has met none of the criteria.

[10] In considering this application, I accept two preliminary points Viscomi’s counsel made. One, this is a new bail hearing under s. 20 of the *Extradition Act*. Thus, the order of Benotto J., made under s. 18(1)(b), is not entitled to any deference. Two, whether entitled to or not, I do not rely on the evidence of Daryl Hawke, a civilian member of the Ontario Provincial Police. Hawke testified at the bail hearing before Benotto J. and described his examination of the computer equipment seized following Viscomi’s arrest on Canadian charges.[^2]

[11] On this application, for reasons I will elaborate on, I conclude:

• Viscomi has not raised any arguable ground of appeal from his committal order;
• Viscomi is not a flight risk; and
• The public interest, standing alone, does not require Viscomi’s detention.

[12] Because I have found no arguable ground of appeal, I dismiss Viscomi’s application for bail. I do so without prejudice to its renewal, should he be able to put forward an arguable ground of appeal or judicial review.

(a) No arguable ground of appeal

[13] An appeal is not frivolous if it raises an arguable issue or ground of appeal. This is a low bar. Nonetheless, on the material before me, I am not persuaded that Viscomi has met this criterion.

[14] He has put forward two main grounds of appeal challenging the correctness of the committal order (he has not put forward any submissions on the Minister’s surrender order). First, the extradition judge erred in ordering Viscomi’s committal because the evidence was not reasonably capable of supporting a finding of guilt. Second, the police obtained Viscomi’s subscriber information from his internet service provider without a warrant, and in the light of the Supreme Court of Canada’s decision in R. v. Spencer[^3] – decided after these committal proceedings – this likely constitutes a breach of s. 8 of the *Canadian Charter of Rights and Freedoms*. And arguably, the evidence the police obtained from the internet service provider will be excluded under s. 24(2) of the Charter. I reject both grounds.

(i) The evidence on the committal order was sufficient

[15] This ground of appeal comes down to two questions: Did the extradition judge apply the right test? And, if so, was there evidence to support his committal order? I answer yes to both questions.

[16] The extradition judge considered the Supreme Court of Canada’s decisions in United States of America v. Ferras,[^4] R. v. Arcuri[^5] and R. v. Sazant,[^6] which respectively set out the general test for committal, the test to be applied when there is, as in this case, circumstantial evidence, and the impropriety of weighing competing inferences at the committal stage. The extradition judge expressly applied the decision of this court in United States of America v. Leonard,[^7] where, at para. 31, Sharpe J.A. set out the appropriate test:

The extradition judge applied the correct test for committal: was there available and reliable evidence upon which a reasonable jury, properly instructed, could convict a sought person for the corresponding Canadian offence listed in the Authorization to Proceed. …Where, as in this case, the evidence is circumstantial in nature, an extradition judge must weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences the trier of fact will be asked to make. “If the inferences required are within the field of inferences available on the whole of the evidence, nothing else matters”. [Citations omitted.]

[17] Applying this test, the extradition judge concluded, at para. 17, that “the evidence in the certified record of the case permits the reasonable inference to be drawn that the respondent was the perpetrator of the offence.”

[18] Viscomi accepts that a crime was committed. But he contends that the evidence identifying him as the perpetrator is insufficient to justify his committal to stand trial in the United States. I do not accept that his contention is even arguable.

[19] The proposed evidence in the Record of the Case supporting the trial judge’s conclusion is as follows:

• The Virginia Beach Police Department has the chat session log and the computer belonging to one of the teenaged sisters. These items show that the individual communicating with the two sisters during the time of the alleged offence had a Skype screen name of “Jamie Paisley” and the account name “jimbos939393”.
• The offences are alleged to have been committed on January 5-6, 2012.
• Skype records show that the IP address associated with the screen name Jamie Paisley and the account name jimbos939393 for the period December 28, 2011, to January 20, 2012, was 24.138.105.47.
• Zing Networks, a residential internet service provider in Ontario, maintained the IP address 24.138.105.47 in December 2011 and January 2012
• The subscriber assigned to IP address 24.138.105.47 between December 6, 2011, and January 20, 2012, was Marco Viscomi, of a specific residential address in Ontario.
• Viscomi’s Ontario driver’s licence shows the same residential address as that associated with the IP address.

[20] On this evidence, all of which was reliable and admissible, one can reasonably draw the inference that Viscomi was the perpetrator of the offences. As the extradition judge acknowledged, it is possible someone else had access to this IP address and could have committed the offences.[^8] But the task of the extradition judge is not to weigh competing inferences. The extradition judge’s task is simply to determine whether one reasonable inference is that the accused committed the offence. The extradition judge in this case determined that from the evidence in the Record of the Case, it was reasonable to draw the inference that Viscomi committed these offences. Although Viscomi argued that independent confirmatory evidence was required, I do not think it was to draw the inference that he was the perpetrator.

(ii) The subscriber information the police seized would be admissible under [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [*Charter*](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[21] Zing received a police request for the name and address of the account holder associated with the IP address 24.138.105.47, used between December 6, 2011, and January 20, 2012. Under Zing’s wireless service internet agreement signed by all of its customers, Zing’s customers agree not to disseminate content that is unlawful, threatening, or abusive, or that constitutes a criminal offence. Zing’s customers also agree Zing has the right to disclose any information needed to satisfy any government request. In accordance with its agreement, Zing voluntarily disclosed to the police the name and residential address of the subscriber assigned to IP address 24.138.105.47 at the relevant time. The decision of this court in R. v. Ward,[^9] the prevailing authority at the time, allowed police to obtain this information from Zing without a warrant.

[22] This year, however, in Spencer, the Supreme Court of Canada decided that when police obtain subscriber information from an internet service provider, they are conducting a search. And if they do so without a warrant, then absent exigent circumstances, the search amounts to a breach of s. 8 of the *Charter*.

[23] For the purpose of this application I accept that Viscomi can rely on Spencer. I therefore accept that when the police obtained from Zing the name and residential address of the subscriber with the IP address 24.138.105.47, they breached Viscomi’s s. 8 *Charter* rights. However, that breach does not justify granting bail because it must be considered in conjunction with s. 24(2) of the Charter. And, as in Spencer, I cannot see any basis for the exclusion under s. 24(2) of the subscriber information the police obtained. As in Spencer:

• The police were acting in good faith under the law in effect at the time, which said that police requests of this kind did not require a warrant.
• The police conduct would not tend to bring the administration of justice into disrepute.
• Although the impact on Viscomi’s Charter-protected rights was serious, the offences too are serious.
• The evidence is reliable and, without it, the prosecution will have no case.

[24] Viscomi argues, however, that the s. 24(2) analysis in this case differs from that in Spencer because the unconstitutionally obtained subscriber information led to *Criminal Code* search warrants, which were used to seize computers and hard drives that were then improperly sent to the United States under the *Mutual Legal Assistance in Criminal Matters Act*^10. Viscomi has challenged these MLACMA proceedings, unsuccessfully to date. Even if his challenge has merit, however, it has no bearing on the committal proceedings because the fruits of the search (the computers and hard drives) were not incorporated into the Record of the Case. On the basis of this court’s decision in United States of America. v. McAmmond,[^11] the proceedings under MLACMA are irrelevant.

[25] For these reasons I see no arguable ground of appeal from the committal order.

(b) Viscomi is not a flight risk

[26] Although suggesting Viscomi was a flight risk, the Attorney General of Canada did not press this point. I do not consider Viscomi to be a flight risk. He has no criminal record and no history of flight. The police seized his passport during the execution of the *Criminal Code* search warrants. Although Viscomi is pursuing medical studies in Australia, these studies have been put on hold pending the disposition of the extradition proceedings. His proposed release plan stipulates that he will remain in Ontario and not apply for a passport or other travel documents. Thus, Viscomi has met this criterion.

(c) The public interest alone does not justify Viscomi’s continued detention

[27] Two chambers decisions of this court bear on the public interest criterion in extradition proceedings: the decision of Simmons J.A. in Canada (Attorney General) v. Raghoonanan[^12]and the decision of Doherty J.A. in France v. Ouzghar.[^13]

[28] In Raghoonanan, Simmons J.A. noted, at paras. 34-35, that the public interest in detaining an applicant is less compelling in the case of an appeal of a committal order under the *Extradition Act* than in the case of an appeal from a conviction under the *Criminal Code*. In the extradition context, the applicant has not been convicted of anything and is presumed innocent. In the Criminal Code context, the applicant has been convicted and the court must balance the reviewability and enforcement of the conviction.

[29] In Ouzghar, Doherty J.A. said that in extradition proceedings, the only reason Canada has any cause to place an applicant in custody is to facilitate the applicant’s surrender to a foreign country. That surrender, of course, will not occur at least until this court has disposed of the applicant’s appeal and judicial review application. Thus to quote Doherty J.A., at para. 12:

Absent some substantive cause specific to the applicant to justify detention, the public interest considered in the context of an extradition proceeding is not served by incarceration that does not facilitate the applicant’s surrender to the requesting country.

[30] Here, the substantive public interest concerns the Attorney General of Canada puts forward to justify Viscomi’s continued detention are the public perception of the reputation of the administration of justice and the likelihood Viscomi will reoffend. In my view, Viscomi’s proposed release plan adequately addresses these concerns.

[31] The proposed release plan is very restrictive. It amounts to house arrest (save for five hours per week), under which Viscomi’s parents would maintain custody over their cell phones and laptops, change the passwords on them daily and lock them up at night. The plan provides Viscomi is not to use, possess or access any device that can connect to the internet. Wireless internet would be disabled. Under the plan, Viscomi would effectively have no way to access the internet and thus reoffend inside his parents’ home.

[32] In addition, he would likely be prevented from reoffending outside the home. Under the proposed release plan, Viscomi would be subject to electronic monitoring, which would restrict his ability to leave his parents’ home. In practical terms, electronic monitoring should prevent him from going, for example, to an internet café, and reoffending.

[33] I acknowledge that the release plan, though very restrictive, is not foolproof. Viscomi’s parents have jobs, which would leave Viscomi alone and unsupervised in the home for more than 20 hours per week. Moreover, an employee of the proposed electronic monitoring company, Jemtec Inc., swore an affidavit in which he acknowledged as follows:

I am aware that Jemtec does not believe that any electronic monitoring system can:

• prevent the Participant from committing crime; or
• physically restrict the Participant’s movement.

[34] In the light of the diminished public interest in detention in the extradition context, and the restrictive bail plan, I do not think that by itself the public interest would justify Viscomi’s continued detention pending his appeal and application for judicial review.

C. Conclusion

[35] I have not been persuaded that Viscomi has raised an arguable ground of appeal from his committal order. For this reason alone, I would dismiss his application for bail. He shall have until January 9, 2015, to perfect his appeal and application for judicial review. They should then be scheduled for an early hearing in 2015.

Released: December 5, 2014 (“J.L.”)

“John Laskin J.A.”

[^1]: Skype is software that allows users to chat with each other via text, audio and video.

[^2]: Viscomi was arrested on Canadian charges in March 2012. The Attorney General of Ontario has withdrawn these charges in the light of the extradition proceedings.

[^3]: 2014 SCC 43, 375 D.L.R. (4th) 255.

[^4]: 2006 SCC 33, [2006] 2 S.C.R. 77.

[^5]: 2001 SCC 54, [2001] 2 S.C.R. 828.

[^6]: 2004 SCC 77, [2004] 3 S.C.R. 635.

[^7]: 2012 ONCA 622, 112 O.R. (3d) 496, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 490.

[^8]: An IP address is an identifying number that an internet service provider assigns to a subscriber when the subscriber’s device connects to the internet. Internet service providers keep track of the dates and times that IP addresses are assigned to their subscribers. They can thus determine when a subscriber’s account was used to access the internet at any given time. But, as Doherty J.A. notes in R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 23, this is not conclusive proof that the subscriber accessed the internet:

> However that does not necessarily mean that the subscriber himself or herself was using the computer connected to the Internet at that time, or that it was even the subscriber's computer that was connected to the Internet. A wired or wireless network may link multiple computers to a central device referred to as a shared access point. When more than one computer is accessing the Internet through a shared access point at the same time, there are additional technical issues that may arise.

[^9]: 2012 ONCA 660, 112 O.R. (3d) 321.

[^10]: R.S.C. 1985, c. 30 (4th Supp.).

[^11]: (2005), 2005 20 (ON CA), 192 C.C.C. (3d) 149.

[^12]: (2003), 2003 52132 (ON CA), 63 O.R. (3d) 465.

[^13]: 2009 ONCA 137, 95 O.R. (3d) 187.