The Attorney General of Canada on behalf of the United States of America v. Viscomi Viscomi v. The Attorney General of Ontario et al. Lane v. The Attorney General of Ontario et al.
[Indexed as: United States of America v. Viscomi]
Ontario Reports
Court of Appeal for Ontario,
Simmons, Cronk and Blair JJ.A.
June 30, 2015
126 O.R. (3d) 427 | 2015 ONCA 484
Case Summary
Charter of Rights and Freedoms — Search and seizure — Investigations by Americans yielding Canadian IP address and Canadian Internet service provider giving Americans subscriber information associated with IP address without warrant — Americans later sharing information with Canadian officials — warranted search of V's residence resulting from information regarding subscriber information — V arguing that Supreme Court of Canada's decision in Spencer requiring prior judicial authorization before IP subscriber information may be disclosed should be applied retroactively and fruits of search excluded as flowing from unwarranted provision of IP subscriber information — Spencer of no assistance as American officials not bound by Charter [page428] while following American investigation in accordance with their law — Americans entitled to share information with Canadians -- investigations in each country were parallel and not part of joint international operation.
Criminal law — Extradition — Committal — Appellant committed for extradition to United States to stand trial on charges arising from Internet communication with 17-year-old girl — Record of the case stating that IP address associated with crime had been assigned to appellant at relevant time — Absence of evidence indicating if IP address associated with single device, whether multiple devices could have been using IP address at same location or if could have been shared by users at other locations via shared access point — Extradition judge erring in inferring that appellant was user of IP address at relevant time — Committal order set aside.
Criminal law — Mutual legal assistance in criminal matters — Charter of Rights — Presumptively ex parte nature of gathering and sending provisions in ss. 18 and 20 of Mutual Legal Assistance in Criminal Matters Act not violating ss. 7 and 8 of Charter — Canadian Charter of Rights and Freedoms, ss. 7, 8 — Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), ss. 18, 20.
The United States of America sought V's extradition to stand trial for child luring. The offender communicated with a 17-year-old girl online. The record of the case ("ROC") stated that the police were able to trace the communications to an IP address that was assigned to V at the relevant time. The subscriber information possessed by the Internet service provider with respect to the IP address included V's name and home address. The extradition judge found that the subscriber information identifying V provided the foundation for a reliable inference that V was the perpetrator of the offence. V was committed for extradition. The Minister of Justice ordered his surrender. V and L (who was committed for extradition in unrelated proceedings) challenged the constitutional validity of ss. 18 and 20 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) ("MLACMA"). Code J. dismissed that application. V appealed his committal order, appealed an order of McWatt J. dismissing his application for disclosure of the fruits of searches of his residence and his computers in Ontario, and applied for judicial review of his surrender order. L did not contest his committal, but joined with V in appealing the order of Code J.
Held, the appeal from the committal order and application for judicial review of the surrender order should be allowed; the appeal from the order of McWatt J. and the appeal from the order of Code J. should be dismissed.
The evidence in the ROC could reasonably lead to a finding that V was the subscriber to the IP address at the time the crime was committed utilizing that IP address. The ROC failed to explain what an IP address is, if multiple users located at the same address could use it or if users at another address via a shared access point could access it. There was no evidence if there were other computers or users at V's address. Based on the gaps in the evidence set out in the ROC, one could not reasonably draw the inference from the fact that V was the subscriber of the IP address that he was the user at the relevant time. The committal order should be quashed. It followed that the surrender order could not stand.
McWatt J. did not err in declining to order production of the materials seized by the Ontario police to further some subsequent Canadian Charter of Rights and Freedoms [page429] challenge when (a) the requesting state made it clear that it was not relying on the fruits of that search to support the committal application; and (b) there was no air of reality with respect to V's suggested Charter violations.
As the Crown may choose to reinstitute extradition proceedings against V in the future (if doing so would not constitute an abuse of process), V's argument regarding the validity of search yielding his IP address should be addressed. The question is whether the Supreme Court of Canada's decision in Spencer, requiring prior judicial authorization before an Internet service provider may give authorities information regarding the subscriber of an IP address is retroactive and, if so, does it require that the fruits of the warranted searches later made of V's home be excluded. First, in Spencer, the Supreme Court held that the evidence obtained in that case was admissible pursuant to s. 24(2) as the authorities were following what they reasonably believed to be the law, as was the case here. Second, the Charter does not bind the actions of foreign authorities. The investigation was undertaken in a manner consistent with American law at the time and their actions were not subject to scrutiny pursuant to the Charter. They were entitled to share the information they obtained regarding the subscriber of the IP address to Canadian authorities. The investigation that later took place in Canada was a parallel investigation, not part of a joint international investigation. Spencer is of no assistance to V.
Code J. did not err in finding that the presumptively ex parte nature of the gathering and sending provisions in ss. 18 and 20 of the MLACMA do not violate ss. 7 and 8 of the Charter. At the investigative stage of the criminal process, there are strong public policy justifications for an expeditious and confidential process. The trans-border context of the MLACMA does not require a departure from the normal principles relating to ex parte searches. Both s. 18 and s. 20 give the hearing judge discretion to impose broad terms, including the giving of notice to targets of the investigation. The MLACMA contains a broad array of safeguards of s. 7 and s. 8 Charter rights that satisfy the test for procedural fairness. There are a number of remedies available when MLACMA evidence is used against a suspect or an accused, including a right of appeal pursuant to s. 35 of the Act. Moreover, there are number of after-the-fact remedies that remain available to the target of the investigation.
R. v. Spencer, [2014] 2 S.C.R. 212, [2014] S.C.J. No. 43, 2014 SCC 43, 2014EXP-1920, J.E. 2014-1084, EYB 2014-238452, 458 N.R. 24, [2014] 8 W.W.R. 209, 312 C.R.R. (2d) 349, 11 C.R. (7th) 52, 375 D.L.R. (4th) 255, 438 Sask. R. 230, 312 C.C.C. (3d) 215, 114 W.C.B. (2d) 282; R. v. Ward (2012), 112 O.R. (3d) 321, [2012] O.J. No. 4587, 2012 ONCA 660, 296 O.A.C. 298, 267 C.R.R. (2d) 198, 97 C.R. (6th) 377; United States of America v. Huynh, 2005 34563 (ON CA), [2005] O.J. No. 4074, 202 O.A.C. 198, 200 C.C.C. (3d) 305, 66 W.C.B. (2d) 680 (C.A.), consd
Other cases referred to
R. v. B. (S.A.), [2003] 2 S.C.R. 678, [2003] S.C.J. No. 61, 2003 SCC 60, 231 D.L.R. (4th) 602, 311 N.R. 1, [2004] 2 W.W.R. 199, J.E. 2003-2086, 21 Alta. L.R. (4th) 207, 339 A.R. 1, 178 C.C.C. (3d) 193, 14 C.R. (6th) 205, 112 C.R.R. (2d) 155, 58 W.C.B. (2d) 430; R. v. F. (S.), 2000 5627 (ON CA), [2000] O.J. No. 60, 182 D.L.R. (4th) 336, 128 O.A.C. 329, 141 C.C.C. (3d) 225, 32 C.R. (5th) 79, 70 C.R.R. (2d) 41, 45 W.C.B. (2d) 93 (C.A.); R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; R. v. Hape, [2007] 2 S.C.R. 292, [2007] S.C.J. No. 26, 2007 SCC 26, 280 D.L.R. (4th) 385, 363 N.R. 1, J.E. 2007-1140, 227 O.A.C. 191, 220 C.C.C. (3d) 161, 47 C.R. (6th) 96, 160 C.R.R. (2d) 1, EYB 2007-120452, 73 W.C.B. (2d) 528; [page430] R. v. Hicks, 1990 156 (SCC), [1990] 1 S.C.R. 120, [1990] S.C.J. No. 7, 104 N.R. 399, 37 O.A.C. 143, 54 C.C.C. (3d) 575, 73 C.R. (3d) 204, 44 C.R.R. 282, 9 W.C.B. (2d) 718, affg 1988 7148 (ON CA), [1988] O.J. No. 957, 28 O.A.C. 118, 42 C.C.C. (3d) 394, 64 C.R. (3d) 68, 37 C.R.R. 151, 8 M.V.R. (2d) 191, 4 W.C.B. (2d) 331 (C.A.); R. v. Jackpine (2004), 2004 28435 (ON CA), 70 O.R. (3d) 97, [2004] O.J. No. 1073, 237 D.L.R. (4th) 122, 184 O.A.C. 354, 182 C.C.C. (3d) 449, 21 C.R. (6th) 284, 60 W.C.B. (2d) 444 (C.A.); R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639, 80 O.A.C. 161, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4, 26 W.C.B. (2d) 436 (C.A.); R. v. Munoz (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134, [2006] O.J. No. 446, [2006] O.T.C. 112, 205 C.C.C. (3d) 70, 38 C.R. (6th) 376, 68 W.C.B. (2d) 773 (S.C.J.); R. v. Rodgers, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, 266 D.L.R. (4th) 101, 347 N.R. 201, J.E. 2006-910, 210 O.A.C. 200, 207 C.C.C. (3d) 225, 37 C.R. (6th) 1, 140 C.R.R. (2d) 1, EYB 2006-104246, 69 W.C.B. (2d) 741; R. v. Terry, 1996 199 (SCC), [1996] 2 S.C.R. 207, [1996] S.C.J. No. 62, 135 D.L.R. (4th) 214, 197 N.R. 105, J.E. 96-1142, 76 B.C.A.C. 25, 106 C.C.C. (3d) 508, 48 C.R. (4th) 137, 36 C.R.R. (2d) 21, 30 W.C.B. (2d) 524; R. v. Tse, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 2012 SCC 16, 257 C.R.R. (2d) 295, 91 C.R. (6th) 223, 2012EXP-1459, J.E. 2012-794, 429 N.R. 109, 321 B.C.A.C. 1, 280 C.C.C. (3d) 423, 344 D.L.R. (4th) 599, 99 W.C.B. (2d) 750; R. v. Van Wyk, [1999] O.J. No. 3515, 104 O.T.C. 161, 6 M.V.R. (4th) 248, 43 W.C.B. (2d) 371 (S.C.J.); R. v. Viscomi, [2014] O.J. No. 5175, 2014 ONCA 765; R. v. Wilson, 1983 35 (SCC), [1983] 2 S.C.R. 594, [1983] S.C.J. No. 88, 4 D.L.R. (4th) 577, 51 N.R. 321, [1984] 1 W.W.R. 481, J.E. 84-70, 26 Man. R. (2d) 194, 9 C.C.C. (3d) 97, 37 C.R. (3d) 97, 11 W.C.B. 200; Schreiber v. Canada (Attorney General), 1998 828 (SCC), [1998] 1 S.C.R. 841, [1998] S.C.J. No. 42, 158 D.L.R. (4th) 577, 225 N.R. 297, J.E. 98-1222, 124 C.C.C. (3d) 129, 16 C.R. (5th) 1, 51 C.R.R. (2d) 253, 38 W.C.B. (2d) 288; United Kingdom v. Ramsden, 1996 1527 (ON CA), [1996] O.J. No. 2716, 92 O.A.C. 270, 41 C.B.R. (3d) 124, 108 C.C.C. (3d) 289, 31 W.C.B. (2d) 538 (C.A.) [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 443]; United States of America v. Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, J.E. 97-1400, 101 O.A.C. 321, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, 44 C.R.R. (2d) 189, 35 W.C.B. (2d) 8; United States of America v. Lane (2014), 121 O.R. (3d) 721, [2014] O.J. No. 3126, 2014 ONCA 506, 323 O.A.C. 142, 116 W.C.B. (2d) 174 (C.A.) [Leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 425]; United States of America v. Leonard (2012), 112 O.R. (3d) 496, [2012] O.J. No. 4366, 2012 ONCA 622, 268 C.R.R. (2d) 185, 296 O.A.C. 258, [2012] 4 C.N.L.R. 305, 97 C.R. (6th) 111, 291 C.C.C. (3d) 549, 104 W.C.B. (2d) 91; United States of America v. McAmmond, 2005 20 (ON CA), [2005] O.J. No. 8, 193 O.A.C. 129, 192 C.C.C. (3d) 149, 126 C.R.R. (2d) 1, 64 W.C.B. (2d) 429 (C.A.); United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106, 70 D.L.R. (3d) 136, 9 N.R. 215, 30 C.C.C. (2d) 424, 34 C.R.N.S. 207; Wakeling v. United States of America, [2014] 3 S.C.R. 549, [2014] S.C.J. No. 72, 2014 SCC 72, 318 C.C.C. (3d) 134, 465 N.R. 1, 15 C.R. (7th) 1, 324 C.R.R. (2d) 337, 363 B.C.A.C. 1, 383 D.L.R. (4th) 221, 2014EXP-3536, J.E. 2014-1995, EYB 2014-244333, 118 W.C.B. (2d) 281
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 7, 8, 24(2)
Criminal Code, R.S.C. 1985, c. C-46 [as am.]
Extradition Act, S.C. 1999, c. 18, ss. 4, 29(1), 40(1)
Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) [as am.], ss. 17-21, 35 [as am.]
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 [as am.] [page431]
Authorities referred to
Hill, S. Casey, et al., McWilliams' Canadian Criminal Evidence, looseleaf, 5th ed. (Toronto: Canada Law Book, 2015)
Watt, David, Watt's Manual of Criminal Evidence 2014 (Toronto: Carswell, 2014)
APPEAL from the committal order of K.L. Campbell J. (2013), 115 O.R. (3d) 606, [2013] O.J. No. 2435, 2013 ONSC 2829 (S.C.J.); the order of McWatt J., [2012] O.J. No. 4979 (S.C.J.); and the judgment of Code J. (2015), 123 O.R. (3d) 733, [2015] O.J. No. 113, 2015 ONSC 61 (S.C.J.); and on judicial review of the decision of the Minister of Justice dated October 17, 2013.
Julianna A. Greenspan, Joseph S. Wilkinson and Bradley Greenshields, for appellant Marco Viscomi.
John Norris and Meara Conway, for appellant Brandon Lane.
Richard Kramer and Nancy Denison, for respondent Attorney General of Canada and for respondent Attorney General of Canada on behalf of the United States of America and on behalf of the Minister of Justice.
Robert Hubbard and Michael Fawcett, for respondent Attorney General of Ontario.
The judgment of the court was delivered by
BLAIR J.A.: —
Background and Chronology
[1] The United States of America sought the extradition of the two appellants, Marco Viscomi and Brandon Lane, in two unrelated proceedings arising out of charges involving internet luring, child exploitation and child pornography. Both were committed for extradition.
A. Mr. Lane
[2] Mr. Lane is wanted in the United States for prosecution on charges relating to his administrative role in a child-exploitation enterprise linked to an online bulletin board. The United States-based website, Dreamboard, advertised and distributed hard core child pornography.
[3] Mr. Lane's extradition proceedings are no longer active. He was subsequently convicted in Canada on other child pornography charges and is currently serving a nine and one-half year sentence in prison. He is no longer contesting his committal for extradition, but remains involved in these proceedings solely for purposes of the constitutional challenge to the "gathering" [page432] and "sending" provisions of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) ("MLACMA") described below. During the course of the extradition proceedings, the United States requested assistance under that legislation to obtain the fruits of searches and seizures conducted by the police in Ontario relating to Mr. Lane, just as they would do in the proceedings relating to Mr. Viscomi.
B. Mr. Viscomi
[4] Mr. Viscomi's extradition is sought in relation to an internet communication between someone and a 17-year-old girl in Virginia Beach in the United States on January 5-6, 2012. The communication took place first in a "chat room", then by means of a "Skype-chat", and finally by way of a Skype video call that enabled the person communicating with the girl to see her on a webcam, but prevented her from seeing him. It is alleged that during the communication, the person coerced, threatened, extorted and otherwise manipulated the girl in ways that led to her exposing her breasts and then engaging in a series of explicit sexual and sexually violent activities with her 13-year-old sister.
[5] Everyone acknowledges that internet child luring and exploitation occurred. However, the lynch-pin issue concerning the Viscomi proceedings is whether he is the "someone" who was on the other end of the video call.
[6] Through the computer used by the victim, the Virginia Beach Police were able to trace the communications through a residential Internet Service Provider ("ISP") in Ontario, Zing Networks, to a numerical, ten-digit Internet Protocol ("IP") address in Ontario. They learned from the ISP that a "Mark Viscomi" was the subscriber to the IP address and that it had been assigned to his account during the night in question. A residential address in Stouffville, Ontario was given for the subscriber. The Virginia Beach Police also had information from a valid Ontario driver's licence abstract, provided by the Ontario police, that a "Marco Viscomi" listed that same address as his residential address.
[7] This ISP information was obtained without prior judicial authorization. The governing authority at the time was this court's decision in R. v. Ward (2012), 112 O.R. (3d) 321, [2012] O.J. No. 4587, 2012 ONCA 660, which held that the police did not require a warrant to obtain ISP subscriber information. Subsequently, the law changed as a result of the Supreme Court of Canada's decision in R. v. Spencer, [2014] 2 S.C.R. 212, [2014] S.C.J. No. 43, 2014 SCC 43, [page433] and prior judicial authorization would now be necessary.
[8] The Virginia Beach Police shared the ISP information it had obtained with the Ontario police force. That information, along with the driver's licence information, alone formed the basis for the Record of the Case ("ROC") filed by the United States in support of its application for an order committing Mr. Viscomi for extradition. The United States did not seek to rely on any information obtained as a result of searches and seizures by the Ontario police.
C. The sequence of events and proceedings
[9] Once in the hands of the Virginia Beach and Ontario police forces, the ISP information led to a waterfall of activities and proceedings extending from at least March 2012 to the date of the hearing before this court in June 2015. These activities and proceedings included:
(i) a warranted search of Mr. Viscomi's residence in Stouffville and his student residence in Chatham-Kent, the seizure of computers and related devices, and the subsequent forensic analysis of those computers and devices;
(ii) his arrest on March 22, 2012 on Canadian charges of luring a child, extortion and uttering threats, and his release on bail the same day, on consent;
(iii) his subsequent arrest on an extradition warrant on August 9, 2012;
(iv) the withdrawal of the Canadian charges on August 10, 2012, in favour of the United States extradition proceedings;
(v) a detention order pending the extradition hearing, issued by Benotto J. (as she then was) on August 16, 2012 (Mr. Viscomi remains detained to this day);
(vi) an unsuccessful attempt by Mr. Viscomi to obtain disclosure of the fruits of the Ontario searches for purposes of his committal hearing -- dismissed as frivolous and vexatious at the behest of the Crown by McWatt J. on October 11, 2012, with reasons released to the parties on October 22, 2012;
(vii) two ex parte "Gathering Orders" issued at the request of the United States on November 6, 2012 under the MLACMA regime (relating to the fruits of the Ontario search and seizure and the Zing Networks information), and an ex parte [page434] "Sending Order" pursuant to the same legislation permitting the Ontario authorities to send that information to the United States authorities on March 12, 2013, all of which were issued by Code J.;
(viii) the committal hearing and the order of K.L. Campbell J. committing Mr. Viscomi for extradition on May 24, 2013;
(ix) the Minister's order to surrender, dated October 17, 2013;
(x) Mr. Viscomi's change in defence counsel in January 2014;
(xi) an inter partes Wilson motion1 -- dismissed by Code J. on September 11, 2014 -- to re-open the MLACMA proceedings, based on allegations of non-disclosure and the effect of the Supreme Court of Canada's decision in Spencer;
(xii) an application for leave to appeal Code J.'s decision on the Wilson application, dismissed by Strathy C.J.O. on October 31, 2014: R. v. Viscomi, [2014] O.J. No. 5175, 2014 ONCA 765; and
(xiii) a constitutional challenge to the gathering and sending provisions in the MLACMA, dismissed by Code J. on January 9, 2015.
[10] What emerges at the bottom of this waterfall of events, for the purposes of the proceedings before this court are: (i) an appeal from the order committing Mr. Viscomi for extradition; (ii) an appeal from the disclosure order of McWatt J.; (iii) an application for judicial review of the Minister's decision to surrender Mr. Viscomi for extradition; and (iv) an appeal by both Mr. Viscomi and Mr. Lane against Code J.'s dismissal of their constitutional challenge to the gathering and sending provisions in the MLACMA regime.
[11] Many issues of a Canadian Charter of Rights and Freedoms and evidentiary nature, including a fresh evidence application, were argued in these contexts. While the constitutional issue must be resolved, the proceedings relating to Mr. Viscomi's extradition fall to be determined on the answer to one simple, discreet question: was it open to the extradition judge to draw the inference that he drew from the information relating to the IP address and Mr. Viscomi's residential address, namely [page435] that it was Mr. Viscomi who was the user of that IP address at the relevant time?
[12] In my respectful view, the answer to that question is no. The order for committal must be set aside. Consequently, there is no basis for the Minister's decision to order Mr. Viscomi's surrender and it, too, must fall. Except for some brief comments on the effect of Spencer in the circumstances of this case, it is not necessary to deal with the other issues raised, save for the constitutional challenge. The appeal from that challenge, in my view, must be dismissed.
[13] I come to these conclusions for the following reasons.
Analysis
A. The committal order
[14] On May 24, 2013, Mr. Viscomi was committed for extradition by order of K.L. Campbell J. on the American equivalent of the Canadian crime of child luring. The only live issue at the hearing was whether there was sufficient evidence identifying Mr. Viscomi as the perpetrator of the offences.
[15] The ROC filed in support of the application indicated the following. By utilizing the chat session log and the information contained on the victim's computer, the Virginia Beach Police were able to trace the computer involved in the communication with the victim, through Skype, to an ISP in Ontario, Zing Networks, and a ten-digit IP address (24.138.105.47). Relying on what was then thought to be the lawful criminal investigation exception to the privacy provisions in the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("PIPEDA"), the U.S. investigators contacted Zing Networks and requested the subscriber information relating to that IP address. They were told that the subscriber was a "Mark Viscomi" at a specific address in Stouffville, Ontario (the "Stouffville Address"), and that that subscriber was assigned to that IP address from December 6, 2011 to January 20, 2012, the time period spanning the offences.
[16] The ROC also attached an Ontario driver's licence abstract and a photograph of "Marco Viscomi", provided by Canadian law enforcement officials, which showed Marco Viscomi's address as the Stouffville Address -- the same address reported by Zing Networks to be associated with the subscriber to IP address 24.138.105.47. The ROC indicated that Marco Viscomi was currently living (as at August 17, 2012) at a specific address in Chatham-Kent, Ontario (the "Chatham-Kent Address"). A Supplemental ROC, dated October 3, 2012, corrected [page436] that information to say that Mr. Viscomi was only living at the Chatham-Kent Address temporarily in the spring of 2012, but that in August 2012 he was living at the Stouffville Address, where he was arrested on the extradition warrant.
[17] From this evidence, as well as information about the contractual terms of the ISP contract, the extradition judge drew the inference that it was Mr. Viscomi who was the user of the IP address at the time in question.
[18] Respectfully, this was not an inference that could reasonably be drawn from that evidence. The evidence could reasonably lead to a finding that Marco Viscomi, the person sought in these proceedings, was the subscriber to the IP address at the time the crime was committed utilizing that IP address. However, on that evidence alone, it was simply too great a leap to draw the inference that he was the user of the IP address at the relevant time.
[19] The extradition judge was alive to the proper test to be applied for committal under the Extradition Act, S.C. 1999, c. 18. Under s. 29(1), the judge shall order committal into custody to await surrender where there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed. In short, the judge must be satisfied that there is some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106, at p. 1080 S.C.R.
[20] Where the evidence is circumstantial in nature, the extradition judge must conduct a limited weighing exercise to ensure the circumstantial evidence is reasonably capable of supporting the inferences the prosecution seeks to have drawn. However, at this stage of the extradition process it is not the judge's role to choose between equally reasonable inferences. As long as the inference in favour of the Crown is reasonable, the judge must proceed on that basis. As Sharpe J.A. explained in United States of America v. Leonard (2012), 112 O.R. (3d) 496, [2012] O.J. No. 4366, 2012 ONCA 622, at para. 31:
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: United States v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77. 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, [page437] nothing else matters": Italy (Republic) v. Caruana, [2004] O.J. No. 5851 (S.C.), Watt J., at para. 153, aff'd 2007 ONCA 488, 157 C.R.R. 1, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 474.
[21] However, as the extradition judge acknowledged, a reasonable inference may not be based on speculation. Many cases have cautioned against conflating a reasonable inference, on the one hand, and mere speculation, conjecture, or even an educated guess, on the other: see, for example, R. v. Munoz (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134, [2006] O.J. No. 446 (S.C.J.), at paras. 21-31; United States of America v. Huynh, 2005 34563 (ON CA), [2005] O.J. No. 4074, 200 C.C.C. (3d) 305 (C.A.), at paras. 6-7.
[22] In R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at para. 52, Doherty J.A. underscored the importance of an inference being grounded in established fact:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.
See, also, David Watt, Watt's Manual of Criminal Evidence 2014 (Toronto: Carswell, 2014), at 9.01; S. Casey Hill et al., McWilliams' Canadian Criminal Evidence, looseleaf, 5th ed. (Toronto: Canada Law Book, 2015), at pp. 31-63 to 31-65.
[23] Here, the extradition judge drew the inference that it was Mr. Viscomi who was using the identified IP address at the time of the crime. He did so based upon the following evidence in the ROC:
(i) The chat session log and the complainant's computer revealed the screen name and account name used by the perpetrator of the offence of child luring;
(ii) The screen name and account name used by the perpetrator of the crime was traced back to a numerical, ten-digit IP address in Ontario;
(iii) According to the residential ISP in Ontario, the IP address associated with the crime was assigned, between December 6, 2011 and January 20, 2012, to "Mark Viscomi" at the Stouffville Address in Ontario. As already mentioned, the crime took place on the night of January 5-6, 2012;
(iv) On the respondent's valid Ontario driver's licence abstract, in the name of "Marco Viscomi," his residential address is listed as the Stouffville Address, the same residential address associated with the relevant IP address identified in the business records of the ISP. [page438]
[24] There is an initial, but important, caveat to these "established" facts, however. The extradition judge appears to have accepted that the ROC established Mr. Viscomi's residential address as "the address associated with the relevant IP address". Later in his reasons ([ (2013), 2013 ONSC 2829, 115 O.R. (3d) 606, [2013] O.J. No. 2435, at para. 18), he makes a similar comment, concluding that the residential address obtained from the ISP subscriber information and the Ontario driver's licence abstract -- the Stouffville Address -- showed Mr. Viscomi's "residential address as the exact same residential address as the one associated with this IP address" (emphasis added).
[25] Respectfully, this constitutes a misapprehension of the evidence. There is nothing in the ROC to establish that the subscriber's residential address and the address associated with the IP address are one and the same. Indeed, there is no evidence to explain what an IP address is, in the context of this case, or how it worked. We do not know on this record whether an IP address identifies a particular subscriber only, or a particular device only, or whether it identifies a particular residential address at which the IP address is located, or even whether the IP address is limited to one particular residential location or could have been used at different locations. Although the ISP contractual documentation contained in the Supplemental ROC indicates that Zing Networks agrees to provide high speed wireless internet service to the subscriber, we do not know whether the service was one that could link multiple computers or other internet-linked devices at different locations to a shared access point or how the service was to be provided in this case at all.
[26] In particular, regarding the inference ultimately drawn about the user of the IP address at the relevant time, even if one assumes the IP address could only have been accessed from the ISP subscriber's residential address (i.e., Mr. Viscomi's residence), we do not know whether it could be accessed by more than one person or by more than one internet-linked device at that address.
[27] The uncertainties created by the lack of this type of evidence are reinforced by the uncertainties that exist, even when it is available. As Doherty J.A. observed in Ward, there is a need to stay within the evidentiary record in cases turning on the nature of an IP address because the evidentiary record on the subject can vary. At para. 18, he said:
I refer specifically to the need to stay within the evidentiary record, usually a self-evident proposition, because a review of other cases that have addressed this same issue suggests an understanding of the nature of an [page439] Internet protocol address ("IP address") that is different than that offered by the evidence in this case. Some cases indicate that the IP address is "unique to that subscriber", e.g., Kwok, at para. 8, and that armed with subscriber information and an IP address the police can compile a "history of [the subscriber's] activity on that network": Trapp, at para. 36, Cameron J.A., for the majority, at para. 78, Ottenbreit J.A., concurring. As outlined below, the evidence in this case does not support the contention that IP addresses are unique to individual subscribers or that combining an IP address with subscriber information allows the police to compile a history of a person's activity on the Internet.
[28] The point is that evidence regarding these matters is important because not all IP address protocols may operate in the same way. Here, there is no such evidence in the ROC.
[29] It was in the context of the evidentiary record before him in Ward that Doherty J.A. made the comment -- relied on by both sides here -- that ISP records indicating that an IP address is assigned to a subscriber at certain dates and times "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": Ward, at para. 23. Mr. Viscomi relies on this statement for the proposition that information regarding the subscriber and the IP address cannot, without more, provide the necessary link to draw an inference about who used that IP address at a particular time. The Crown relies on it for the contrary view.
[30] The extradition judge accepted the Crown's position. He concluded that the comments of Doherty J.A. "suggest only that ISP subscriber information does not conclusively prove that an individual assigned to an IP address at the time of an offence committed the alleged offence, given the possibility that other individuals may have had access to the internet via the IP address assigned to the accused" (para. 25, emphasis in original), and that the ISP information "went 'some distance to identifying [Mr. Viscomi] as the person involved'" in the child luring activities (para. 27). In short, because the ISP information "did not necessarily mean" the subscriber was using the IP address, it also "did not necessarily mean" he was not. The inference that Mr. Viscomi was using the IP address at the time of the crime could therefore be drawn.
[31] I do not read Ward in that fashion, and, respectfully, I do not agree. The inference that Mr. Viscomi was the user of the IP address assigned to him at the relevant time is not one that can reasonably and logically be drawn from the fact that he was the subscriber to that IP address and that the residential address for purposes of his subscriber account was the same as that shown on the abstract of his driver's licence. [page440]
[32] By way of analogy, take, for example, a situation where a car is recklessly driven through a red light, striking another vehicle and very seriously injuring a passenger in that vehicle. The first vehicle and driver disappear, but an observer has taken down the licence plate number and the police are able to trace the owner of the vehicle with that information. The observer did not see the driver, and there is no other evidence in relation to the identity of the driver of the vehicle at the time. Could the registered owner of the vehicle be convicted of criminal negligence causing bodily harm on the basis of the foregoing evidence alone? I would think that to pose the question is to answer it in the negative. See, for example, R. v. Hicks, 1988 7148 (ON CA), [1988] O.J. No. 957, 42 C.C.C. (3d) 394 (C.A.), at p. 407 C.C.C., affd 1990 156 (SCC), [1990] 1 S.C.R. 120, [1990] S.C.J. No. 7; R. v. Van Wyk, [1999] O.J. No. 3515, 104 O.T.C. 161 (S.C.J.), at paras. 24-25.
[33] United States of America v. Huynh is an instructive example of the inference drawing process in the extradition context. Mr. Huynh was sought for extradition to the United States on charges involving the laundering of proceeds of crime obtained by trafficking in a controlled substance. The material relied on in support of the extradition justified the inference that Mr. Huynh had conspired with others to covertly transfer very large amounts of cash from the United States to Canada. However, the ROC in that case did not contain any direct evidence as to the source of the cash. Mr. Huynh was nonetheless committed for extradition.
[34] This court allowed the appeal and quashed the committal. While the material identified by the United States permitted the inference that the cash was from the proceeds of some illicit activity, there was no evidence as to the source of the material, and there was nothing in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity. Doherty J.A. put it this way, at para. 7:
The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence.
(Emphasis added) [page441]
[35] Here, based on the ISP information, the notion that Mr. Viscomi was the user of the IP address assigned to his subscriber account at the relevant time is one that may [at para. 7] "[come] readily to mind as one possible [conclusion]". However, the gap between the subscriber information and the factual inference that Mr. Viscomi was the user of the IP address at the relevant time [at para. 7] "can only be bridged by evidence". There is no such evidence in the ROC. As Doherty J.A. points out, speculation, educated guesses, and even common sense and human experience cannot provide a substitute for such evidence.
[36] For the foregoing reasons, I conclude that the inference drawn by the extradition judge that Mr. Viscomi was the person using the IP address at the relevant time is not a permissible inference that could reasonably be drawn from the established facts in the ROC. In my view, a reasonable trier of fact, properly instructed, could not convict Mr. Viscomi on the basis of the ISP and related driver's licence abstract information alone. It follows that the order committing Mr. Viscomi for extradition to the United States cannot stand and must be quashed.
B. The disclosure order
[37] In view of the foregoing, the order of McWatt J. dismissing Mr. Viscomi's application for further disclosure in the committal proceeding is somewhat academic.
[38] Suffice it to say that I agree with the application judge. I see no error in the exercise of her discretion not to order production of the materials seized by the Ontario police to further some subsequent Charter challenge when: (a) the requesting state made it clear that it was not relying on the fruits of that search to support the committal application; and (b) there was no air of reality with respect to Mr. Viscomi's suggested Charter violations.
[39] I would dismiss the appeal from the disclosure order for the reasons given by the application judge.
C. The surrender order
[40] The Minister's power to order surrender is predicated on the person sought having been committed for extradition. Section 40(1) of the Extradition Act states:
40(1) The Minister may, within a period of 90 days after the date of the person's committal to await surrender, personally order that the person be surrendered to the extradition partner. [page442]
[41] Given the decision to quash the order committing Mr. Viscomi for extradition, it follows as well that the Minister's decision to surrender him for extradition must fall too.
[42] I need not deal, therefore, with the many issues raised by Mr. Viscomi on his application for judicial review of the Minister's decision.
[43] Notwithstanding the foregoing disposition, however, the Crown may still decide to institute further proceedings, whether on new or the same evidence, provided the new proceedings would not constitute an abuse of process: Extradition Act, s. 4. That being the case, there is one issue raised in both the committal and surrender proceedings that warrants comment, in the event the matter should be pursued further. I refer to the effect of the Supreme Court of Canada's decision in Spencer.
[44] In Spencer the court ruled that the police are required to obtain a warrant to obtain ISP subscriber information. That was not the law at the time the extradition proceedings were commenced against Mr. Viscomi (and Mr. Lane) or at the time the Ontario police utilized the ISP subscriber information provided to them by the Virginia Beach Police in order to obtain the warrants to search Mr. Viscomi's residences. Prior to Spencer, Ward provided that ISP subscriber information could be obtained in Ontario without prior judicial authorization.
[45] Mr. Viscomi argues that he is entitled to the benefit of the change in law since Spencer and that none of the evidence in the ROC -- or the fruits of the searches and seizures predicated on the warrantless ISP information -- is admissible against him and must therefore be excluded under s. 24(2) of the Charter. There are two principal difficulties with this argument, however. The first is the ultimate disposition made by the Supreme Court of Canada on the merits in Spencer. The second is the inapplicability of the Charter to foreign officials.
[46] Spencer involved ISP subscriber information obtained without a warrant. The court held that procedure to be unconstitutional. It declined, however, to exclude the evidence under s. 24(2) [of the Charter] because the police reasonably believed the law did not require a warrant at the relevant time. Given the relative lack of seriousness of the Charter breach, therefore, and the general interest of society in having serious criminal matters determined on the merits, the first and third branch of the test set out in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, militated against the exclusion of the evidence. I see no material difference between [page443] the circumstances in Spencer and those existing here and do not see any basis involving the warrantless ISP "search" that would lead to a different result.
[47] Turning to the second difficulty, it is well-established that the Charter governs the conduct of Canadian state actors, but does not apply to the conduct of foreign authorities conducting a lawful investigation within their sovereign jurisdictions, even where Canadian authorities may have cooperated with them: see R. v. Terry, 1996 199 (SCC), [1996] 2 S.C.R. 207, [1996] S.C.J. No. 62, at paras. 14-19; Schreiber v. Canada (Attorney General), 1998 828 (SCC), [1998] 1 S.C.R. 841, [1998] S.C.J. No. 42, at paras. 27-34; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, [2007] S.C.J. No. 26; United States of America v. Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at paras. 136-141.
[48] Here, the Virginia Beach Police were conducting a criminal investigation in the United States, in conformity with the laws of the United States (and, at the time, with the law in Canada). The Charter does not govern the conduct of foreign police in such circumstances: Dynar, at para. 139. In addition, once they had obtained the ISP information, the Virginia Beach Police were entitled to share that information with the Ontario police: Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, [2014] S.C.J. No. 72, at paras. 29 and 57 (Moldaver J.), and 96 (McLachlin C.J.C.).
[49] I reject the argument that because the Virginia Beach Police purported to rely on the law enforcement exceptions in PIPEDA in making their request for the ISP information, they were thereby transmogrified into Canadian state actors for that purpose. They were American authorities carrying out an American investigation on American soil. If the mere reliance on what was then a lawful procedure in making contact with a Canadian entity turned them into Canadian actors in that context, there would be no basis for distinguishing between the conduct of Canadian and foreign officials in cases involving international police cooperation. The distinction exists in law, however: see Dynar, at paras. 138-139. I note that neither Mr. Viscomi's nor Mr. Lane's cases involved a joint international police investigation. To the extent the proceedings continued at the same time in Canada and the United States, they were parallel proceedings only.
[50] At the end of the day, I am satisfied that the "Spencer factor" is of no assistance to Mr. Viscomi in the circumstances of this extradition proceeding. [page444]
D. The constitutionality of the "gathering" and "sending" provisions of the MLACMA regime
[51] At approximately the same time as it commenced extradition proceedings against Mr. Viscomi, and in separate proceedings against Mr. Lane, the United States took steps under the "gathering" and "sending" provisions of the MLACMA to obtain the fruits of searches and seizures conducted by the police in Ontario with respect to the charges against the two appellants.
[52] Justice McWatt issued both gathering and sending orders with respect to the materials relating to Mr. Lane on April 23, 2012. Justice Code issued two gathering orders on November 6, 2012 and a sending order on March 12, 2013 with respect to the materials relating to Mr. Viscomi. These applications all proceeded on an ex parte basis. Neither judge exercised the discretion open to them under the MLACMA regime to give notice to the appellants.
[53] The appellants each challenge the constitutionality of s. 18 (the gathering order provision) and s. 20 (the sending order provision) of the MLACMA on the ground that they are "presumptively ex parte" proceedings; that is, there is no mandatory requirement for a hearing on notice to the target of the investigation before the gathered materials are sent to the foreign jurisdiction. They say that this is unconstitutional because, in their view, the target of a foreign investigation must have the right to assert whatever Charter or other objections the target may have to the procedure before the fruits of the gathering exercise are sent to the foreign jurisdiction, out of the reach of Canadian courts, thus rendering them immune to attacks that may be available in Canada under Canadian law. Put another way, they submit that the MLACMA gathering and sending regime does not have adequate "accountability measures" (i.e., notice and the right to challenge the authorizations) to pass constitutional muster.
[54] I disagree.
[55] The appellants each advance a variety of submissions challenging the legality of the search and seizure procedures conducted by the Canadian authorities. In Mr. Viscomi's case -- leaving aside the Spencer issue discussed above -- Code J. dealt with those arguments on the separate Wilson hearing and rejected them. Leave to appeal from that decision was denied by Strathy C.J.O. Mr. Lane's case is not as clear. The extradition judge stayed the extradition proceedings on a number of grounds. However, this court allowed the Crown's appeal from [page445] that decision and ordered a new extradition hearing. In doing so, the court rejected the extradition judge's most serious findings of fact regarding misconduct by the Crown law officers and police officers, but the extent to which, if at all, any of the other findings regarding the alleged search and seizure violations stand is unclear. As noted above, Mr. Lane has now consented to his committal for extradition, but the proceedings are on hold as he is currently in prison in Canada on other charges.
[56] I do not think that the particulars of the individual violations, if any, are of much relevance to the constitutional challenge, in any event. It is evident that there may well be occasions under the MLACMA regime where materials that might be subject to Charter challenge in Canada are sent to a requesting state. The issue is whether there are adequate procedural protections -- or, as the appellants would put it, "accountability measures" -- in place under the regime to sustain its constitutional validity under s. 7 and s. 8 of the Charter.
[57] Justice Code concluded there were. In a careful and thorough decision, he dismissed the constitutional challenge on January 9, 2015. I agree.
[58] As Charron J. observed, in R. v. Rodgers, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, 207 C.C.C. (3d) 225, at paras. 46-47, [at para. 51] "there is no constitutional guarantee to the most favourable procedure available"; rather, [at para. 47] "[t]he constitutional norm . . . is procedural fairness", and whether or not notice and participation are required to meet that norm will depend upon the context and what safeguards are in place.
[59] In his comprehensive reasons, Code J. considered and analyzed:
(i) the "gathering" and "sending" regime set out in ss. 17-21 of the MLACMA, including the fact that, while proceedings are initially mandated to be ex parte, both the gathering and sending provisions give the hearing judge discretion to impose broad terms, including the giving of notice to targets of the investigation;
(ii) a consistent line of authority in this court holding that the MLACMA regime provides for an investigatory process to help Canada's treaty partners in criminal investigations, that such a process should be dealt with as expeditiously and confidentially as possible, and that the proceedings under the MLACMA are presumptively ex parte for these reasons: see United States of America v. Lane (2014), 121 O.R. (3d) 721, [2014] O.J. No. 3126, 2014 ONCA 506, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 425 [page446] (the successful Crown appeal of the stay of extradition imposed in the appellant Lane's case); United States of America v. McAmmond, 2005 20 (ON CA), [2005] O.J. No. 8, 192 C.C.C. (3d) 149 (C.A.); United Kingdom v. Ramsden, 1996 1527 (ON CA), [1996] O.J. No. 2716, 108 C.C.C. (3d) 289 (C.A.), at paras. 39-40, and 53, leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 443;
(iii) a further line of authority relating to different types of investigatory search and seizure regimes holding that presumptively ex parte proceedings in such circumstances do not violate the constitutional norm of procedural fairness where procedural safeguards are in place: see R. v. Jackpine (2004), 2004 28435 (ON CA), 70 O.R. (3d) 97, [2004] O.J. No. 1073, 182 C.C.C. (3d) 449 (C.A.), at paras. 31-32 and 34 (DNA data bank warrants for certain convicted offenders), revd in the result but not on this point, R. v. Rodgers, supra (for concurring remarks on this point from Rodgers, see paras. 45-48 and 51-55); R. v. B. (S.A.), [2003] 2 S.C.R. 678, [2003] S.C.J. No. 61, 2003 SCC 60, 178 C.C.C. (3d) 193, at para. 56 (DNA warrants); R. v. F. (S.), 2000 5627 (ON CA), [2000] O.J. No. 60, 141 C.C.C. (3d) 225 (C.A.), at paras. 39-41;
(iv) the appellants' submissions that the trans-border context of the MLACMA changes the normal constitutional principles and requires that notice be given to the target of the requesting state's investigation before the sought-after materials are sent from the jurisdiction; and
(v) the impact of the Supreme Court of Canada's decisions in Wakeling v. United States of America, supra (holding that co-operating international police forces have a common law right to share lawfully obtained investigatory information), and R. v. Tse, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 2012 SCC 16 (striking down a wiretap provision in the Criminal Code, R.S.C. 1985, c. C-46 because it contained no after-the-fact notice provisions for the target, where there were no prior accountability safeguards, including prior judicial authorization).
[60] At the conclusion of his analysis, Code J. held that the "gathering" and "sending" powers found in s. 18 and s. 20 of the MLACMA comply with the constitutional requirement of procedural fairness because of the "broad array of s. 7 and s. 8 safeguards that easily satisfy the contextual test" for procedural [page447] fairness. He summarized the safeguard features of the legislation as follows, at para. 61 of his reasons:
First, these are "investigative tools" that generally require confidentiality and expedition, in order to be effective. Accordingly, there is a strong state interest in ex parte proceedings;
Second, the investigation of cross-border or international crime is no different than domestic crime in this regard. Indeed, Canada's treaty obligations require confidentiality and expedition;
Third, both the s. 18 and s. 20 search and seizure powers require separate and distinct judicial hearings and warrants. The second stage "sending" hearing and warrant is a protection that is not found in the analogous legislative schemes of the United Kingdom, the United States, New Zealand, and Australia. In other words, the Canadian legislation is more protective of s. 8 interests than analogous regimes in other free and democratic countries;
Fourth, the standard on which the s. 18 warrant issues is the normal constitutional standard of "reasonable grounds" to believe that "an offence has been committed" and that relevant evidence "will be found". See Hunter et al v. Southam Inc. (1984) 1984 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.);
Fifth, the judge has discretion not to grant the order, both at the s. 18 and s. 20 stages. See R. v. Baron et al (1993) 1993 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.);
Sixth, the judge has discretion to give notice to any interested party. In addition, the person who is the subject of the s. 18 Gathering Order can object and appear at a hearing pursuant to s. 18(7);
Seventh, the judge has discretion to impose "terms or conditions";
Eighth, the s. 18 and s. 20 hearings are based on a written record and the person who carries out the Gathering Order prepares a written report, all of which are preserved as court records;
Ninth, the Minister controls both the front end and back end of the process, pursuant to ss. 17 and 21, and can impose additional "terms or conditions";
Tenth, the Act is based on treaty obligations that are reciprocal. As a result, Canada can exert effective political and diplomatic pressure when there is a risk of misuse or abuse in relation to evidence sent by Canada;
Eleventh, the treaties and the sending orders place limits on the use to which the evidence can be put;
Twelfth, there are a number of available remedies when MLACMA evidence is used against a suspect or an accused, including a right of appeal pursuant to s. 35 of the Act. This remedial aspect of the scheme will be further discussed below.
[61] Justice Code also noted that there were a number of after-the-fact remedies that remained available to the target of the [page448] investigation that weighed in favour of constitutionality in the contextual balancing exercise.
[62] I have only briefly summarized the approach taken by Code J. and the reasons provided for his decision. I do not think there is anything to be gained by adding a further layer of analysis to the constitutional challenge beyond those reasons. I would dismiss the constitutional challenge to ss. 18 and 20 of MLACMA for the reasons he gave, with which I am in substantial agreement.
Disposition
[63] For all of the foregoing reasons, I would:
(i) allow the appeal from the order committing Mr. Viscomi for extradition, quash the committal order, and order that he be discharged;
(ii) dismiss the appeal from the disclosure order of McWatt J.;
(iii) set aside the order of the Minister for Mr. Viscomi's surrender; and
(iv) dismiss the appeal from the order of Code J. dismissing the application of the appellants Viscomi and Lane for an order declaring ss. 18 and 20 of the MLACMA unconstitutional.
Appeal from committal order and application for judicial review of surrender order allowed; other appeals dismissed.
Notes
1 See R. v. Wilson, 1983 35 (SCC), [1983] 2 S.C.R. 594, [1983] S.C.J. No. 88, 9 C.C.C. (3d) 97), holding that a court has inherent jurisdiction in criminal matters to review its own ex parte orders.
End of Document