COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Viscomi, 2016 ONCA 980

DATE: 20161223

DOCKET: M47285 (C62967)

Gillese J.A. (In Chambers)

BETWEEN

The Attorney General of Canada (on behalf of the United States of America)

Respondent

and

Marco Viscomi

Applicant

Julianna Greenspan and Brad Greenshields, for the applicant

Nancy Dennison and Monika Rahman, for the respondent

Heard: December 20, 2016

Gillese J.A.:

[1] Marco Viscomi (the “Applicant”) applies under s. 20 of the Extradition Act, S.C. 1999, c. 18 (the “Act”) for bail pending his appeal of the order dated October 25, 2016, committing him for extradition to the United States. He has been in custody in relation to this matter since August of 2012.

[2] The Attorney General of Canada opposes the application.

Background in Brief

[3] The proceedings in this case have a long and complicated history. Only the key parts of the chronology that are relevant to this application are set out below.

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

[5] In the United States, the Applicant will face child pornography and child luring charges in respect of these allegations. If convicted, he faces a sentence of up to 30 years in prison.

[6] The Applicant was arrested on domestic charges on March 22, 2012. He was released on bail on March 22, 2012, on the consent of the Attorney General of Ontario, subject to the condition that he reside with his father as a named surety.

[7] On August 9, 2012, the Applicant was arrested under the Act. The Canadian charges were withdrawn.

[8] The Applicant brought an application for bail in relation to the extradition proceedings. That application was heard by Benotto J., as she then was, on August 16, 2012.

[9] Evidence at the bail hearing before Benotto J. showed that, at the time of his arrest under the Act, the Applicant was in breach of his then-existing domestic bail because he was unsupervised and in possession of an internet-enabled iPhone. Unbeknownst to his father (his surety), the Applicant had not disconnected the internet data service on his iPhone immediately upon his release in March 2012, as required by the terms of his interim release on the domestic charges. Instead, he had let his data plan run out two months after his release and, even after it had run out, his iPhone could continue to connect to the internet through WiFi. Neither of the Applicant’s parents was aware of these facts until the day of the bail hearing. His father admitted he was not well-versed in matters involving technology and the internet.

[10] By order dated August 16, 2012, Benotto J. dismissed the bail application because she found that there was a substantial likelihood that the Applicant would re-offend and the protection of the public required his continued detention.

[11] Following a committal hearing, by order dated May 24, 2013, the Applicant was committed for extradition to the United States.

[12] The Applicant appealed the committal order and brought a fresh bail application to this court.

[13] By order dated December 5, 2014, Laskin J.A. dismissed the application. He viewed the merits of the appeal to be frivolous but found that otherwise the Applicant met the test for release.

[14] On June 30, 2015, a panel of this court ordered the Applicant’s discharge, finding that there was insufficient evidence for committal for the offence of child luring.

[15] That same day, the United States asked Canada to provisionally arrest the Applicant under the Act. In the provisional arrest request material, the United States advised that they had conducted a complete search of the Applicant’s computer. As a result of the search, 80 new alleged victims had been located, 70 of whom were in the United States and 10 of whom who were located out of the United States.

[16] That same day – June 30, 2015 – the arrest warrant was issued and the Applicant was arrested.

[17] A new Record of the Case (“ROC”) was prepared. It contained the same allegations as in the prior ROC but also relied on evidence seized from the Applicant’s computer in Canada. As well, the ROC contained a chart of similar fact evidence showing how the Applicant had used the same modus operandi to intimidate, threaten and abuse the young female victims in sexually sadistic ways.

[18] A second extradition hearing followed. By order dated October 25, 2016 (the “Order”), the Applicant was again committed for extradition to the United States.

[19] On November 23, 2016, the Applicant filed a notice of appeal of the Order. Although a number of grounds of appeal are raised, it is significant that the Applicant does not allege that there is insufficient evidence to justify committal.

[20] The Applicant was to have completed his submissions to the Minister, pursuant to s. 43 of the Act, by November 24, 2016. However, at the Applicant’s request, the Minister has permitted the Applicant until late January 2017 to make his submissions on surrender.

[21] It is within this context that the Applicant brings this application for judicial interim release. His proposed plan of release is to reside with his parents – his proposed sureties – at their home, on house arrest. He would be fitted with an electronic monitoring device and be subject to an electronic monitoring system at his residence. He would not possess any device capable of connecting with the internet.

The Test for Release under [s. 20](https://www.canlii.org/en/ca/laws/stat/sc-1999-c-18/latest/sc-1999-c-18.html) of the [Act](https://www.canlii.org/en/ca/laws/stat/sc-1999-c-18/latest/sc-1999-c-18.html)

[22] Section 20(a) of the Act provides that the test to be applied is that set out in s. 679 of the Criminal Code, R.S.C., 1985, c. C-46, with any modifications that the circumstances require. Accordingly, the Applicant must show that:

a) his appeal is not frivolous;

b) he is not a flight risk; and

c) his detention is not necessary in the public interest.

Analysis

[23] As I would decide this application primarily on the third criterion, I will deal with the first and second criteria summarily.

(a) The appeal is not frivolous

[24] The Attorney General submits that there is no merit to any of the grounds of appeal raised by the Applicant and, consequently, the appeal is frivolous. My assessment of the grounds of appeal is that they are weak, but I cannot say that they are so devoid of merit as to be frivolous within the meaning of the statutory provisions governing bail. I will return to the matter of the merits of the appeal below.

(b) The Applicant has failed to show that he is not a flight risk

[25] The Applicant took the position that because there had been no material change since Laskin J.A. heard his prior bail hearing, this court is bound by Laskin J.A.’s determination that he is not a flight risk.

[26] I do not agree.

[27] As this is a new bail hearing under s. 20 of the Act, arising from a new order of committal, in my view, this court is to consider the application on a de novo basis. It is not bound by Laskin J.A.’s findings on any of the three criteria. The Applicant’s simple reliance on Laskin J.A.’s determination of this criterion is not only misplaced in law, it also fails on the facts. There has been a material change in the circumstances since Laskin J.A. heard the Applicant’s prior bail application. The strength of the case against the Applicant has increased and the magnitude of the Applicant’s alleged wrongdoing is substantially increased.

[28] The Attorney General argues that the risk of flight is greater now than ever before. The Attorney General says that the court should be concerned about flight, given the Applicant’s demonstrated disregard for court orders. The Attorney General points to the fact that when the Applicant was initially arrested under the Act, he possessed, without supervision, a device permitting him to access the internet. He was, therefore, in wilful breach of his bail conditions. The Attorney General also notes that having been committed for extradition a second time, the Applicant is that much closer to the possibility of a term of incarceration of up to 30 years in an American prison. Finally, the Attorney argues that given the limitations on electronic monitoring, the proposed conditions do not adequately alleviate the risk of flight.

[29] To these considerations, I would add that the Applicant is well-versed in travel. He lived for a number of years in Australia, in various locations. When he returned to Canada in 2011, he worked in Labrador and Thunder Bay, among other places. I acknowledge that his passport was seized by police in March of 2012. However, flight is not limited to places outside of Canada.

[30] In the circumstances, the Applicant has failed to show that he is not a flight risk.

(c) Detention is necessary in the public interest

[31] In my view, this application clearly fails on the third criterion – the Applicant’s continued detention is necessary in the public interest.

[32] The public interest has two components: (1) public safety; and (2) public confidence in the administration of justice: R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.); and R. v. Forcillo, 2016 ONCA 606, at para. 9. A consideration of both components leads to the conclusion that the Applicant’s continued detention is necessary.

[33] Before turning to those components, it is important to recognize the change in the ROC before the court at the second committal hearing. That ROC contained information that was not before either Benotto J. or Laskin J.A. because it arose from the United States’ search of the Applicant’s computer. At the time of his bail application before Benotto J., she was aware that evidence of seventeen identified victims had been located on the Applicant’s computer, in addition to the allegations relating to the two sisters in Virginia. Laskin J.A. considered only the evidence relating to the latter two victims.

[34] The ROC now shows that, as a result of searching the Applicant’s computer, United States officials have concluded that the Applicant sexually exploited a great many more young girls. The United States authorities have located approximately 300 different chats that reveal a similar modus operandi of intimidating, threatening and abusing vulnerable young girls in sexually sadistic ways. In its provisional arrest request materials, the United States alleged that the Applicant successfully exploited a further 80 victims, 70 in the United States and 10 in other countries.

[35] It is within that context that I consider first public safety and thereafter public confidence in the administration of justice.

(i) Public safety

[36] This application raises grave concerns about public safety. The evidence against the Applicant demonstrates an ongoing systematic pattern of intimidating, threatening and exploiting vulnerable children through sadistic sexual acts. The risk of re-offending, if the Applicant is released, has not been met by the proposed plan of supervision.

[37] It is acknowledged that electronic monitoring cannot restrict the Applicant’s movements and is subject to the possibility of technological deterioration or failure. Further, the proposed plan of supervision leaves open a real risk that the Applicant might obtain access to the internet. There will still be an internet line into his parents’ home, where he would reside. His parents both work outside the home, with the result that he will be home alone for at least 20 hours each week. Access to wireless internet now is “ubiquitous”, as the Attorney General argued. All of this is compounded by the sureties’ admittedly limited technological capabilities which translates into their limited capacity to supervise the Applicant’s use of technology.

(ii) Public confidence in the administration of justice

[38] In considering whether continued detention is necessary to maintain the public’s confidence in the administration of justice, the court must consider how a reasonable and properly-informed member of the public would perceive the granting of bail: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 87. In my view, such a person would not be satisfied that it is in the public interest to release the Applicant pending his appeal.

[39] This case involves grave criminal conduct. The alleged offences are violent, heinous and involved vulnerable victims. There is compelling evidence that the scope of the Applicant’s criminal conduct is much more extensive and serious than was known at the time of his previous bail applications. There is also strong and compelling evidence that the Applicant engaged in, and was successful in, the lengthy, continuous, systematic exploitation of young girls that involved brutal and sadistic sexual violence.

[40] In France v. Ouzghar, 2009 ONCA 137, 95 O.R. (3d) 187, at para. 14, this court indicated that where legitimate public interest concerns are raised in connection with the applicant’s release, a “harder look at the merits of the application will be justified”. While I have found that the proposed grounds of appeal meet the low threshold of “not frivolous”, in my view, the merits are very weak. The evidence is extremely strong that the Applicant committed the offences for which extradition is sought. The issues raised on appeal relate to the legality of the gathering of the evidence, not to the sufficiency of the evidence that establishes that he committed the offences.

[41] The totality of the circumstances leaves me in no doubt that this application must be dismissed.

Disposition

[42] For these reasons, the application is dismissed.

Released: December 23, 2016 (“E.E.G.”)

“Eileen E. Gillese J.A.”

[^1]: Although these reasons refer, for the sake of simplicity, to the Applicant’s “computer”, the United States’ Record of the Case relies upon evidence from a laptop and a separate hard drive. The Applicant has indicated that, on appeal, he will challenge the validity of the searches conducted in Ontario that led the police to seize the Applicant’s electronic devices.