The Attorney General of Canada (on Behalf of the United States of America) v. Lane

[Indexed as: United States of America v. Lane]

Ontario Reports

Court of Appeal for Ontario

Laskin, Watt and Hourigan JJ.A.

May 18, 2017

138 O.R. (3d) 167 | 2017 ONCA 396

Case Summary

Charter of Rights and Freedoms — Fundamental justice — Extradition — Extradition — Minister of Justice ordering applicant's surrender to stand trial in United States on charges arising from his alleged leadership role in sophisticated international child pornography organization — Applicant facing potential sentence of life imprisonment if convicted after trial — Minister reasonably finding that severity of potential sentence did not make applicant's surrender contrary to principles of fundamental justice.

Charter of Rights and Freedoms — Mobility rights — Extradition — United States requesting applicant's extradition to stand trial on charges of engaging in child exploitation enterprise, conspiracy to advertise distribution of child pornography and conspiracy to distribute child pornography — Applicant charged in Canada with offences arising out of his possession of homemade computer with images of child pornography while on bail pending decision on committal — Applicant pleading guilty to those offences and applying successfully to have sentencing judge consider evidence that he distributed child pornography in addition to making and possessing it — Minister of Justice ordering applicant's surrender to United States — Minister reasonably finding that applicant's surrender would not violate his rights under s. 6(1) of Charter — Canadian Charter of Rights and Freedoms, s. 6(1).

Criminal law — Extradition — Double jeopardy — United States requesting applicant's extradition to stand trial on charges of engaging in child exploitation enterprise, conspiracy to advertise distribution of child pornography and conspiracy to distribute child pornography — Applicant charged in Canada with offences arising out of his possession of homemade computer with images of child pornography while on bail pending decision on committal — Applicant pleading guilty to those offences and applying successfully to have sentencing judge consider evidence that he distributed child pornography in addition to making and possessing it — Minister of Justice ordering applicant's surrender to United States — Minister reasonably finding that applicant's surrender would not infringe protection against double jeopardy in art. 4(1)(i) of Treaty — Test for double jeopardy being offence-based rather than conduct-based — Treaty on Extradition Between the Government of Canada and the Government of the United States of America, December 3, 1971, Can. T.S. 1976 No. 3, art. 4(1)(i).

Facts

The applicant allegedly played a leadership role in a sophisticated international child pornography organization that operated a website called "Dreamboard". The American enterprise had servers in Georgia and Nevada, and about 70 people in the United States had been charged for their involvement in offences between January and June 2010. The entire contents of Dreamboard's databases were seized. The offender was one of four administrators of the site and he had a very high level of responsibility for it and had the highest level of membership. The United States of America sought his extradition to stand trial on charges of engaging in a child exploitation enterprise, conspiracy to advertise the distribution of child pornography and conspiracy to distribute child pornography. Those offences were said to correspond to the Canadian offences of distributing child pornography and conspiring to distribute child pornography.

While on bail awaiting a decision on committal, the applicant was charged in Canada with offences arising from his possession of a homemade computer with images of child pornography after his father turned him in. Among the child pornography images were videos taken surreptitiously of the young children of his cousin while they were being changed at his home. He pleaded guilty to those offences and applied successfully under s. 725(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 to have the sentencing judge consider evidence that he not only possessed and made child pornography, but also distributed it through Dreamboard. This was a tactical gambit to try to resist the pending extradition. Over the Crown's objection, the sentencing judge took the applicant's distribution of child pornography through Dreamboard into account in sentencing him to 9.5 years' imprisonment. The applicant then consented to committal.

He argued before the Minister of Justice that his surrender would violate the protection against double jeopardy in art. 4(1)(i) of the Treaty on Extradition Between the Government of Canada and the Government of the United States of America, that the severity of the potential sentence he faced in the United States rendered his surrender contrary to the principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms, and that his surrender would unjustifiably limit his right to remain in Canada under s. 6(1) of the Charter. The minister rejected those arguments and ordered the applicant's surrender to the United States. The applicant applied for judicial review of that decision.

Held

The application should be dismissed.

The minister correctly found that the test for double jeopardy under art. 4(1)(i) of the treaty is offence-based, rather than conduct-based. The minister may look at the elements of the foreign and Canadian offences to see if they align and may consider the objective of the two offences. Her conclusion that the applicant's surrender would not infringe the protection against double jeopardy was reasonable. She reasonably concluded that the elements and objectives of the Canadian distribution offence and the American child exploitation enterprise offence are distinct. The Canadian offence contains no element of acting in concert with three or more persons in three or more incidents of exploiting children, involving three or more victims, or of knowing that the pornographic material is distributed inter-provincially or internationally by computer. Nor does it require proof of the positive act of organized co-operation with others to facilitate the distribution of the material, as the American offence does. The distribution of child pornography is in fact ancillary to the core element of the American offence, which is the organized, interstate or international collaboration with others to exploit children. The minister's decision that the American charges of conspiracy to distribute and advertise child pornography differ from the Canadian offence of distributing child pornography was also reasonable. A charge of conspiracy does not subsume the substantive offence. The essence of conspiracy is a meeting of the minds with regard to a common design to do something unlawful, not the actual carrying out of that design.

The minister reasonably found that the fact that the applicant faced a potential sentence of life imprisonment if convicted after a trial in the United States did not make his surrender contrary to the rules of fundamental justice and did not make his surrender unjust or oppressive contrary to s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18. The offences were extremely serious. Absent a potential death penalty or sentence that would involve some form of torture, the severity of a sentence will not generally shock the conscience of Canadians. The sentence the applicant faced did not meet those criteria. The sentence would not shock the Canadian conscience because the applicant engaged in his activities while in Canada.

The minister's conclusion that the applicant's surrender would not violate his rights under s. 6(1) of the Charter was reasonable.

Authorities Considered

Canada (Justice) v. Fischbacher, [2009] 3 S.C.R. 170, 2009 SCC 46; Canada v. Schmidt, [1987] 1 S.C.R. 500; R. v. Van Rassel, [1990] 1 S.C.R. 225; United States of America v. Andrews, [1991] M.J. No. 323, 65 C.C.C. (3d) 345 (C.A.)

Other Cases Referred To

Canada (Minister of Justice) v. Lake, [2008] 1 S.C.R. 761, 2008 SCC 23; France v. Diab (2014), 120 O.R. (3d) 174, 2014 ONCA 374; France v. Liang (2007), 88 O.R. (3d) 12, 2007 ONCA 741; Garz v. United States of America, [2006] Q.J. No. 1339, 2006 QCCA 222, 215 C.C.C. (3d) 429; Germany v. Schreiber (2007), 87 O.R. (3d) 641, 2007 ONCA 791; R. v. Angelillo, [2006] 2 S.C.R. 728, 2006 SCC 55; R. v. Larche, [2006] 2 S.C.R. 762, 2006 SCC 56; R. v. Sheppe, [1980] 2 S.C.R. 22; R. v. Spencer, [2014] 2 S.C.R. 212, 2014 SCC 43; United States of America v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; United States of America v. Cail, [2009] A.J. No. 1152, 2009 ABCA 345; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; United States of America v. Dynar, [1997] 2 S.C.R. 462; United States of America v. K. (J.H.), [2002] O.J. No. 2341; United States of America v. Kucan, [2001] O.J. No. 4162; United States of America v. Lane (2014), 121 O.R. (3d) 721, 2014 ONCA 506; United States of America v. Leonard (2012), 112 O.R. (3d) 496, 2012 ONCA 622; United States of America v. Sriskandarajah, [2012] 3 S.C.R. 609, 2012 SCC 70; United States of America v. Wilcox, [2015] B.C.J. No. 164, 2015 BCCA 39; Washington (State) v. Johnson, [1988] 1 S.C.R. 327

Statutes Referred To

Canadian Charter of Rights and Freedoms, ss. 6(1), 7, 8, 11(h), 24(2)

Crimes and Criminal Procedure Act, 18 U.S.C. 1591, 2251(d)(1), (e), 2252A(g), 2252A(a)(2)(A), (b)(1)

Criminal Code, R.S.C. 1985, c. C-46, ss. 145(3), 163.1(2), (3), (4), 164.1(4), 355(b), 465, 725(1)(c)

Extradition Act, S.C. 1999, c. 18, ss. 3(1)(a), (b), 15, 23, 29(1)(a), 44(1)(a)

APPLICATION for Judicial Review

Application for judicial review from the decision of the Minister of Justice dated November 16, 2015 to order the applicant's surrender to the United States of America.

Counsel:

John Norris, for applicant.

Richard Kramer and Monika Rahman, for respondent.

The judgment of the court was delivered by

HOURIGAN J.A.:

A. Introduction

[1] The applicant is a resident of Ontario who resists extradition to the United States on a series of child pornography charges.

[2] In 2010, American authorities alerted Canadian authorities about the applicant's alleged leadership role in a sophisticated international child pornography organization that operated a website called "Dreamboard". This information led to the laying of various child pornography charges against the applicant in the United States and Canada. The Canadian charges were ultimately stayed.

[3] While on bail pending the hearing for his committal for extradition, the applicant's father turned him in to the police after discovering the applicant's homemade computer, which contained thousands of images of child pornography. The applicant was charged with breach of recognizance and a number of criminal offences related to the possession and making of child pornography under the Criminal Code, R.S.C. 1985, c. C-46. He pleaded guilty to those offences.

[4] At his sentencing hearing, the applicant applied under s. 725(1)(c) of the Criminal Code for the court to consider evidence that he not only possessed and made child pornography, but also that he distributed it through Dreamboard, even though a distribution charge was not before the court. With the American charges looming, this was a tactical gambit to engineer a double jeopardy defence to resist a possible extradition. Over the objection of the Crown and the American authorities, the sentencing judge granted the application and took the distribution into account as an aggravating factor in imposing a sentence of 9.5 years' imprisonment. The applicant subsequently consented to his committal for surrender for extradition.

[5] The applicant submitted to the Minister of Justice that his surrender should be refused because the facts of his distribution of child pornography through Dreamboard were taken into account in his Canadian sentence. He argued that extradition to face similar charges in the United States would expose him to double jeopardy, contrary to art. 4(1)(i) of the Treaty on Extradition Between the Government of Canada and the Government of the United States of America, December 3, 1971, Can. T.S. 1976 No. 3 (entered into force March 2, 1976) (the "treaty").

[6] The applicant also argued that his surrender would violate s. 7 of the Canadian Charter of Rights and Freedoms primarily on the basis that the severity of the potential sentence he would be subject to in the United States would shock the Canadian conscience. He further submitted that extradition would unjustifiably infringe his right to remain in Canada under s. 6(1) of the Charter.

[7] The minister rejected the applicant's arguments and ordered his extradition. On this application for judicial review of the minister's surrender decision, the applicant renews the arguments made to the minister and also submits that the minister applied the wrong test in her double jeopardy analysis. For the reasons that follow, I would dismiss the application.

B. Factual Background

[8] Dreamboard was a password-protected online forum with about 600 members. It was dedicated to the distribution and advertisement of child pornography. Members were organized in a hierarchy of levels and corresponding privileges that they could advance through according to the number and frequency of their posts.

[9] Dreamboard contained thousands of postings and messages containing child pornography and links to external images and videos. An American company hosted it with servers located in Georgia and Nevada in the United States.

[10] Following an American-led investigation, approximately 70 individuals were charged over their alleged involvement in Dreamboard between January and June of 2010. The entire content of Dreamboard's databases was seized.

[11] As a result of data retrieved during the American investigation, subscriber information associated with the IP address used by a member of the site known under the alias "BossHiaka" was traced to the applicant's residence in Kingston, Ontario. American authorities alerted the RCMP, and arrest and search warrants were obtained.

[12] The Kingston Police executed the warrants on November 26, 2010. The applicant was arrested and his computers were seized pursuant to the warrants. The applicant was charged with child pornography offences under the Criminal Code. He was released on bail on December 2, 2010.

[13] Meanwhile, an American indictment against the applicant was issued on January 11, 2011. The appellant is charged with three counts of contravening the following provisions of Title 18 of the United States Code: engaging in a child exploitation enterprise, contrary to 18 U.S.C. 2252A(g); conspiracy to advertise the distribution of child pornography, contrary to 18 U.S.C. 2251(d)(1) and (e); and conspiracy to distribute child pornography, contrary to 18 U.S.C. 2252A(a)(2)(A) and (b)(1).

[14] In the American indictment, the applicant is alleged to have acted as one of four administrators for the Dreamboard site. The administrators are alleged to have controlled membership on the site, advised members on appropriate security measures and provided technical support for the operations of the site. The applicant allegedly had a very high degree of responsibility for the site and held the highest level of membership.

[15] It is alleged that between September 2008 and June 2010, the applicant posted about 2,600 messages to the site, hundreds of child pornography images, encouraged others to share such images and offered advice as to how to avoid detection through the use of encryption software. The applicant is also alleged to have encouraged members to sexually assault children and post videos of their assaults on the website.

[16] Paul Graham Fry, a former Dreamboard user operating under the alias "Lofty", has already been extradited from Canada to the United States. He will testify as to the applicant's involvement in Dreamboard during the prosecution of the American charges.

[17] The United States, by a diplomatic note dated January 28, 2011, formally requested the applicant's extradition to stand trial in the State of Louisiana. The minister gave the Attorney General of Canada authority to seek the applicant's committal for extradition under s. 15 of the Extradition Act, S.C. 1999, c. 18 (the "Act") on February 25, 2011. She provided an amended authority to proceed on April 26, 2011 pursuant to s. 23 of the Act.

[18] The minister specified the following Canadian offences corresponding to the alleged criminal conduct for which the applicant's was indicted in the United States: distribution of child pornography, contrary to s. 163.1(3) of the Criminal Code; and conspiracy to distribute child pornography, contrary to ss. 163.1(3) and 465 of the Criminal Code.

[19] The applicant was ordered to be detained in custody pending the extradition proceedings. The Canadian charges against the applicant were withdrawn on November 15, 2011 for reasons that have not been disclosed.

[20] A committal hearing took place on November 28, 2011 before Abrams J. The applicant had brought an application under s. 8 of the Charter to exclude evidence obtained from the applicant's residence during the arrest in Kingston. Abrams J. took this decision under reserve.

[21] Armstrong J.A., for this court, ordered the applicant's release on a recognizance of bail on December 23, 2011 pending the decision on committal. The applicant's parents and an aunt were to act as sureties. He was required not to possess a computer capable of accessing the Internet.

[22] On August 14, 2012, the applicant's father found a homemade computer in the applicant's bedroom and reported this breach of recognizance to the authorities. The police found a substantial quantity of images of child pornography on the makeshift computer, including the applicant's surreptitious video recording of his cousin's two young daughters while they were being changed and toileted by their mother at the applicant's residence.

[23] On September 26, 2012, Abrams J. released his decision on the Charter application in the applicant's committal proceeding: see [2012] O.J. No. 4834, 2012 ONSC 5404. He found a s. 8 breach and excluded the evidence at issue from the proceeding pursuant to s. 24(2) of the Charter.

[24] On September 26, 2013, for reasons unrelated to the application for judicial review currently before this court, Abrams J. stayed the committal proceeding as an abuse of process: 2013 ONSC 6078. However, this court set aside the stay and ordered a new committal hearing on June 30, 2014: United States of America v. Lane (2014), 121 O.R. (3d) 721, 2014 ONCA 506. The Supreme Court of Canada denied leave to appeal: [2014] S.C.C.A. No. 425.

[25] On January 6, 2014, the applicant pleaded guilty before Beaman J. in the Ontario Court of Justice to the following Criminal Code offences arising out of the homemade computer discovered by his father while he was on bail: breach of recognizance, contrary to s. 145(3); making child pornography in the form of a digital video file, contrary to s. 163.1(2); voyeurism, contrary to s. 163.1(2); possessing digital video of child pornography, contrary to s. 163.1(4); possessing digital images of child pornography, contrary to s. 164.1(4); and possessing digital images of a value not exceeding $5,000, knowing the images were obtained by the commission of an offence in Canada, contrary to s. 355(b).

[26] As part of the guilty plea, an agreed statement of facts was read into the record. It acknowledged the applicant's role in Dreamboard since 2008, the fact that the applicant posted thousands of images of child pornography on the site and the fact that he distributed such images and assisted other members of Dreamboard in distributing them.

[27] At sentencing, the applicant applied under s. 725(1)(c) of the Code for the court to exercise its discretion to consider evidence that the applicant not only possessed and made child pornography, but also that he distributed it through Dreamboard. This provision states:

725(1) In determining the sentence, a court

(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

The Crown and the American Department of Justice opposed the application. Beaman J. granted it, writing as follows:

[T]o not consider the fact that Mr. Lane both received files and distributed child pornography that he discovered through his own endeavors, would improperly constrain this court's decision-making process on sentencing. I have found that the distribution element of Mr. Lane's on-line activities played a key role in his ability to move up in the Dream Board organization, and give him access to bigger and more graphic digital collections.¹

[28] Beaman J. considered the facts of the applicant's distribution of child pornography in relation to his role with Dreamboard as aggravating factors. She imposed a total of 9.5 years' incarceration, broken down as follows: two years for breach of recognizance; two years for each possession of child pornography offence, concurrent to each other but consecutive to the sentence for the breach offence; one year consecutive for the voyeurism offence; one year consecutive for possessing stolen property; and six months consecutive for making child pornography.

[29] The applicant consented to committal for extradition before McMahon J. in the Superior Court of Justice on February 10, 2015.

C. Reasons of the Minister

[30] The applicant submitted to the minister that his surrender should be refused on three grounds.

[31] First, he argued that his surrender would violate the protection against double jeopardy in art. 4(1)(i) of the treaty, which provides that extradition should not be granted:

When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested.

According to the applicant, the similarity between the conduct for which he was punished in Canada and that for which he would potentially be punished in the United States also rendered his surrender unjust and oppressive, contrary to s. 44(1)(a) of the Act.

[32] Second, the applicant argued that the severity of the potential sentence in the United States rendered his surrender contrary to the principles of fundamental justice under s. 7 of the Charter.

[33] Third, he argued that the surrender would unjustifiably limit his right to remain in Canada under s. 6(1) of the Charter.

[34] In a letter dated November 16, 2015 to the applicant's counsel, the minister provided her reasons for ordering the applicant's surrender to the United States. She rejected each ground relied on by the applicant.

[35] The applicant filed additional submissions with the minster on August 23, 2016 requesting that she reconsider her surrender decision. The minister declined to consider the new submissions.

D. Issues

[36] The applicant submits that the minister's decision to order his surrender was unreasonable. The issues he raises on this application for judicial review and my conclusions on each issue may be summarized as follows:

(1) Should this court interfere with the minister's decision that the applicant's surrender would not infringe the protection against double jeopardy in art. 4(1)(i) of the treaty?

No. The minister applied the correct analytical approach to double jeopardy under art. 4(1)(i) by looking to the elements and objectives of the charges the applicant faced in Canada and the United States. The alternative conduct-based approach urged by the applicant is inconsistent with the language of art. 4(1)(i) and controlling authority from the Supreme Court of Canada. Moreover, it is better suited to the issue of double criminality. The minister's conclusion regarding double jeopardy was reasonable and, therefore, should not be interfered with by this court.

(2) Should this court interfere with the minister's decision that the applicant's surrender would not infringe s. 7 of the Charter and her refusal to reconsider this conclusion on the basis of the applicant's further submissions?

No. The minister was aware of the potential lengthy prison sentence the applicant would face if extradited. However, she reasonably concluded that, given the applicant's alleged role in a sophisticated international child pornography organization, the potential sentence he would face in the United States would not shock the Canadian conscience. The applicant's additional submission that his sentence would shock the Canadian conscience because he engaged in his activities while in Canada and not the United States is not persuasive. It is not shocking that the applicant may be punished for conduct that took place partially in the United States and that impacted that country. The minister also reasonably declined to consider the applicant's additional submissions, as he did not raise any new issues that would impact her decision.

(3) Should this court interfere with the minister's decision that the applicant's surrender would not infringe s. 6(1) of the Charter?

No. The minister balanced all of the competing factors and came to a reasonable decision. She did not err in concluding that the applicant had not already been punished for the American offences he faces. Nor did she err in failing to investigate why no further charges would be laid against the applicant in Canada, as prosecutorial authorities are not required to disclose such decisions and the ability to prosecute in Canada is only one of the many factors to be considered. The minister also gave sufficient weight to the potential for civil commitment in the United States and reasonably rejected it as a violation of the applicant's s. 6(1) Charter rights.

E. Analysis

(1) Double Jeopardy

(i) The Minister's Decision

[37] The minister found that the applicant's surrender would not violate art. 4(1)(i) of the treaty. She stated that the "essential character" of the uncharged child pornography distribution offence taken into account by Beaman J. at sentencing is "the act of distributing, sharing or transmitting child pornography". She compared this offence to the American offences and concluded that they concerned different wrongs, following Canada v. Schmidt, [1987] 1 S.C.R. 500, at pp. 527-28 S.C.R.

[38] The first offence charged in the United States was engaging in a child exploitation enterprise. The materials submitted by the American authorities in support of the extradition request indicated that a person engages in a child exploitation enterprise if the person knowingly participates, in concert with three or more persons, in three or more separate incidents of felonious conduct involving the exploitation of children, including the advertisement and distribution of child pornography. Furthermore, the three or more incidents must involve more than one victim, and, if the act of child exploitation involves the advertisement and distribution of child pornography, the accused must know that pornographic material is transported in interstate or foreign commerce by computer. The American authorities advised that this offence was enacted to target individuals who engage in large-scale unlawful conduct involving the exploitation of children.

[39] The minister inferred from this information that the "essential character" of the American child exploitation enterprise offence is "taking part in a large-scale criminal organization dedicated to committing offences against children". She regarded the advertisement and distribution of child pornography as only a component of the offence, not its essence.

[40] The minister concluded that the essential character of the Canadian offence of distributing child pornography is distinct from that of the American child exploitation enterprise offence. The two offences concern distinct wrongs because the former contains no element of an "enterprise" or "large-scale conduct", whereas the latter does. Therefore, double jeopardy was not engaged.

[41] The second and third offences charged in the United States were conspiracy to advertise the distribution of child pornography and conspiracy to distribute child pornography. These offences were premised on the alleged agreement between the applicant and his co-conspirators to advertise or carry out the distribution of child pornography.

[42] The minister noted that conspiracy does not subsume the substantive offence and that a person may be convicted of both the conspiracy and the substantive offence that is the object of the conspiracy, citing R. v. Sheppe, [1980] 2 S.C.R. 22. Thus, the American conspiracy offences were distinct from the Canadian substantive distribution offences. The sentence imposed by Beaman J. that reflected the Canadian distribution offence did not address any alleged agreement between the applicant and his co-conspirators. Again, the minister concluded that double jeopardy was not engaged.

(ii) Arguments on the Application for Judicial Review

[43] In this court, the applicant submits that the minister applied "an overly narrow and formalistic interpretation of the requirements of double jeopardy". He argues that the analysis under art. 4(1)(i) must focus on the conduct to which a foreign charge relates rather than the specific constituent elements of the charge under foreign law, which the minister fixed on. In his submission, when applying the double jeopardy principle, it is not necessary for the Canadian offence to match the foreign offence in name or in its elements; he says that only "the essence of the offence matters", citing Canada (Justice) v. Fischbacher, [2009] 3 S.C.R. 170, 2009 SCC 46, at para. 29.

[44] The applicant submits that the minister failed to follow this approach and erred in law in focusing her analysis on the elements of the Canadian and American offences and not on the conduct underlying the offences. According to the applicant, the minister failed to recognize the fundamental commonality in the conduct underlying the offences. He further submits that she erred in insisting on perfect symmetry between the constituent elements of each offence.

(iii) Standard of Review

[45] The decision of the minister to order surrender is reviewed on a reasonableness standard: Canada (Minister of Justice) v. Lake, [2008] 1 S.C.R. 761, 2008 SCC 23, at paras. 34-41. However, I accept the submission of the applicant that, when considering the issue of double jeopardy, the minister must apply the correct test: Lake, at para. 41.

[46] Consequently, in the next sections of my analysis, I will first consider whether the minster applied the correct test under art. 4(1)(i) of the treaty. I will then turn to the question of whether the minister reasonably determined that double jeopardy was not engaged.

(iv) The Correct Test is Offence-Based

[47] On the applicant's proposed conduct-based approach to art. 4(1)(i), when the minister determines whether to order a person's surrender for extradition, she must consider whether the charges of the foreign offence relate to conduct for which the person has already been punished in Canada.

[48] In my view, it is incorrect to adopt the applicant's position because it is contrary to the plain language and meaning of art. 4(1)(i); it is inconsistent with Supreme Court jurisprudence; and it wrongly imports into the double jeopardy analysis the conduct-based approach used in considering the principle of double criminality in extradition law. I will review each of these reasons below.

[49] First, art. 4(1)(i) of the treaty requires the minister to refuse extradition "when the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offence which the extradition is requested" (emphasis added). Thus, the treaty requires the minister examine the offence for which a person has been previously punished and compare that to the offence for which the person's extradition is sought. There is no suggestion in the treaty that the minister should undertake an analysis of the conduct engaged in by the person sought.

[50] Second, the governing authority on the correct approach to double jeopardy in the extradition context is Schmidt, where the Supreme Court of Canada took an offence-based approach to the analysis. In Schmidt, the United States sought Ms. Schmidt's extradition for the offence of child stealing under the laws of the State of Ohio. She had already been tried and acquitted on the same facts for the federal American crime of kidnapping. She argued that extradition would result in her being exposed to double jeopardy, contrary to ss. 7 and 11(h) of the Charter and the treaty.

[51] La Forest J. held that Ms. Schmidt's double jeopardy concern could be considered under the principles of fundamental justice in s. 7 of the Charter (but not under s. 11(h) of the Charter). He stated, at p. 528 S.C.R.:

Repeated attempts by the same prosecutorial authorities to prosecute a person for the same offence may, in certain circumstances, well amount to harassment sufficiently oppressive that surrender of such a person would violate those principles.

[52] However, he concluded that this standard was not met, writing as follows, at p. 528 S.C.R.:

The two offences involve quite different elements. The kidnapping offence is aimed at regulating interstate and foreign commerce, and maritime jurisdiction, as well as internationally-protected persons. The state action is aimed at public order within the state, and is designed particularly to protect young persons. Various other elements and defences appear in one provision but not the other. Different interests are involved, with different prosecutorial authorities following their own paths. Similar situations may exist in this country. They do not generally arise in as acute a fashion here because criminal law is exclusively vested in Parliament, but on the other hand the same prosecutorial authorities are often involved.

(Citations omitted and emphasis added)

In this passage, La Forest J. focuses on the different elements and objectives of the two offences, not on the alleged conduct. Ms. Schmidt's potential exposure to double jeopardy for the Ohio offence and for the federal offence was not contrary to the principles of fundamental justice because "the two offences at issue were comprised of different elements and objectives": Anne W. La Forest, La Forest's Extradition to and From Canada, 3rd ed. (Aurora, Ont.: Canada Law Book, 1991), at p. 113.

[53] Thus, the proper approach to double jeopardy in the extradition context is not conduct-based but offence-based. The minister may look to the constituent elements of the foreign and Canadian offences to see if they align, as well as to the objectives of the two offences.

[54] The applicant argues that Schmidt is distinguishable because La Forest J. held that art. 4(1)(i) of the treaty had no application in that case. La Forest J. reasoned that art. 4(1)(i) applies only where a person whose extradition is sought has been already been punished in Canada and faces potential punishment for the same offence in the requesting state. It did not apply in Schmidt because Ms. Schmidt has already been punished in the requesting state, the United States, and faced extradition for the same offence in that state: see p. 517 S.C.R.

[55] While I accept that there is a factual difference between Schmidt and the present case, there is no principled basis to conclude that an offence-based analysis should not be adopted when considering double jeopardy under art. 4(1)(i) of the treaty in circumstances where the provision is properly applicable. Indeed, after Schmidt, the Quebec Court of Appeal applied an offence-based analysis to art. 4(1)(i) in Garz v. United States of America, [2006] Q.J. No. 1339, 2006 QCCA 222, 215 C.C.C. (3d) 429 (cited to C.C.C.). In concluding that a surrender decision by the minister did not violate art. 4(1)(i), Côté J.A. affirmed the minister's statement that the Canadian and foreign offences at issue must have the same elements for double jeopardy to be engaged. She agreed with the minister that "the essential elements of the offences and the evidence supporting the charges in the United States are different": para. 66.

[56] Furthermore, the Supreme Court's decision in Schmidt is consistent with its later decision in R. v. Van Rassel, [1990] 1 S.C.R. 225. Van Rassel involved an accused who had been acquitted in the United Sates of three charges. The issue was whether he could be tried in Canada for a similar charge. The accused pleaded autrefois acquit, but the Supreme Court rejected that submission. McLachlin J. (as she then was) stated, at p. 234 S.C.R., that, when assessing whether the plea is made out in relation to double prosecution for similar domestic and foreign offences, the court must determine whether the offences in question are different or the same "in nature" [at pp. 234-35 S.C.R.]:

It is sometimes difficult to apply the principle of autrefois acquit to charges arising in criminal law systems completely different from our own. While the laws of different countries are rarely the same, it must be recognized that the plea of autrefois acquit is based on the principle of justice and fairness and that the Criminal Code does not require that the charges be absolutely identical. Despite the technical form of the relevant sections of the Criminal Code, the substantive point is a simple one: could the accused have been convicted at the first trial of the offence with which he is now charged? If the differences between the charges at the first and second trials are such that it must be concluded that the charges are different in nature, the plea of autrefois acquit is not appropriate. On the other hand, the plea will apply if, despite the differences between the earlier and the present charges, the offences are the same.

(Emphasis added)

[57] I reject the applicant's submission that the Supreme Court adopted a conduct-based analysis in Van Rassel. To the contrary, in concluding that autrefois acquit was not applicable, the court looked not to the accused's conduct but to distinctions between the essential elements of the Canadian and American charges: p. 236 S.C.R. In the above excerpt from McLachlin J.'s reasons, she held there was no necessity for perfect symmetry between the two charges. It would have been sufficient if the natures of two charges were the same.

[58] The applicant also relies on the decision of the Manitoba Court of Appeal in United States of America v. Andrews, [1991] M.J. No. 323, 65 C.C.C. (3d) 345 (C.A.), at p. 350 C.C.C, as support for adopting a conduct-based approach to art. 4(1)(i) of the treaty. In Andrews, the court commented favourably on such an approach in obiter: p. 350 C.C.C. However, this decision is of little assistance to the applicant because Philp J.A. concluded that it was unnecessary to decide whether a conduct-based approach should be preferred over an offence-based approach: p. 352 C.C.C.

[59] In summary, the Supreme Court has made clear that the proper approach to the double jeopardy analysis is offence-based and not conduct-based.

[60] Third, while a conduct-based approach is appropriate when applying the principle of double criminality in Canadian extradition law, it is inappropriate for considering the issue of double jeopardy. A conduct-based approach to double criminality is specifically mandated by s. 3(1)(a) and (b) of the Act when an extradition judge determines whether to order a person's committal for extradition. This can be contrasted with the mandate in art. 4(1)(i) of the treaty, which requires the minister to examine the similarities between the Canadian offences that a person has been punished for and the foreign offence for which the person's extradition is sought.

[61] The conduct-based approach to double criminality also must be understood in terms of the role of the extradition judge at a committal hearing, which is set out in s. 29(1)(a) of the Act. The judge must order committal where there is evidence 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". Nothing in this provision suggests that the extradition judge should be concerned with the constituent elements of the foreign offence.

[62] The judge's duty at a committal hearing is simply to determine whether there is a prima facie case of a Canadian crime. It is not open to the judge "to consider the nature of the charges in the United States of America. He is obliged to accept the statement of the Minister that the alleged conduct corresponds to the named Canadian offences": United States of America v. Kucan, [2001] O.J. No. 4162, 151 O.A.C. 131 (C.A.), at para. 5. See, also, United States of America v. Cail, [2009] A.J. No. 1152, 2009 ABCA 345, 15 Alta. L.R. (5th) 46, at para. 15.

[63] Further, the conduct-based approach to double criminality has two rationales that are not applicable to double jeopardy. It first ensures that the person whose extradition is sought is punished only for conduct that he or she had fair notice would invite punishment in Canada for their commission: Washington (State) v. Johnson, [1988] 1 S.C.R. 327, at pp. 341-42 S.C.R. This fair-notice rationale is distinct from the purpose of the protection against double jeopardy, which is to ensure the finality of a criminal verdict, protect the individual interest in repose and avoid state oppression of the individual by means of repeated criminal proceedings: see George C. Thomas III, "An Elegant Theory of Double Jeopardy", [1988] U. Ill. L. Rev. 827, at pp. 839-40.

[64] The conduct-based approach to double criminality also ensures that Canada only extradites a person to face foreign charges when it is also possible for Canada to reciprocally request that person's extradition from another nation to face those charges in Canada: Johnson, at pp. 341-42 S.C.R. However, there is no need for this reciprocity rationale to shape the correct approach to double jeopardy. It will already have been fully satisfied by the application of the double criminality principle by an extradition judge at the committal stage of the extradition process, which occurs before the minister and this court consider the protection against double jeopardy in art. 4(1)(i) of the treaty.

[65] I would add the final observation that the Supreme Court's decision in Fischbacher relied on by the applicant is of no assistance to him. In that case, the Supreme Court was considering the double criminality provisions in the Act and not double jeopardy under the treaty.

[66] For the foregoing reasons, I conclude that the minister was correct in applying an offence-based approach to the double jeopardy analysis.

(v) The Minister's Decision Was Reasonable

[67] Having found that the minister used the correct test, the analysis shifts to determining whether the minister's conclusion that double jeopardy was not engaged was reasonable. In my view, it was.

[68] Under the offence-based approach to art. 4(1)(i) of the treaty applied by the minister, she was obliged to determine whether the Canadian offences for which the applicant was punished have the same or different elements and objectives as the American offences for which his extradition was sought.

[69] Beaman J. considered facts about the applicant's distribution of child pornography through Dreamboard. To be convicted of distributing child pornography contrary to s. 163.1(3) of the Criminal Code, the accused must have knowledge that the pornographic material was being made available or be wilfully blind to that fact. But the accused need not have knowingly and by some positive act facilitated the availability of the material: R. v. Spencer, [2014] 2 S.C.R. 212, 2014 SCC 43, at paras. 83-84.

[70] It was reasonable for the minister to conclude that the elements and objectives of the Canadian distribution offence and the American child exploitation enterprise offence are distinct. The Canadian offence contains no element of acting in concert with three or more persons in three or more incidents of exploiting children, involving three or more victims, or of knowing that the pornographic material is distributed inter-provincially or internationally by computer. Nor does it require proof of the positive act of organized cooperation with others to facilitate the distribution of the material, as the American offence does.

[71] The distribution of child pornography is in fact ancillary to the core element of the American offence, which is the organized, interstate or international collaboration with others to exploit children. The child exploitation may involve the distribution of child pornography, but that is not necessary; it could also involve sex trafficking (18 U.S.C. 1591) or kidnapping (18 U.S.C. 1591). By contrast, the distribution of child pornography is at the core of the Canadian offence in s. 163.1(3) of the Criminal Code.

[72] These distinctions underscore that the objective of the American offence is narrower than the Canadian offence. It is to criminalize large-scale, organized child exploitation operations that occur across state or national borders. This was the objective proposed by the American authorities to the minister. The Canadian offence more broadly targets the distribution of child pornography even when it is committed by a single person by means other than a computer, without co-operating with others, in a single incident involving a single victim and without crossing borders.

[73] The minister's decision that the American charges of conspiracy to distribute and advertise child pornography differ from the Canadian offence of distributing child pornography was also reasonable. A charge of conspiracy does not subsume the substantive offence. The essence of conspiracy is a meeting of minds with regard to a common design to do something unlawful, not the actual carrying out of that design: see Sheppe; United States of America v. Dynar, [1997] 2 S.C.R. 462, at paras. 86-90; and Lake, at para. 44.

[74] Although, as the appellant points out, sentences for a conspiracy and the substantive offence are usually ordered to be served concurrently, this rule is not an absolute requirement in Canadian law. The rule, therefore, does not suggest that consecutive punishment for the conspiracy and the substantive offence is contrary to the protection against double jeopardy. In any event, the minister did consider that a sentencing judge in the United States could take into account the time the applicant spent in custody in Canada as a mitigating factor.

[75] In summary, the minister's decision that double jeopardy under art. 4(1)(i) of the treaty did not apply in the circumstances of this case was reasonable and there is no basis for appellate interference.

(2) Unjust or Oppressive Surrender

(i) The Minister's Decision

[76] The minister rejected the applicant's submission that his surrender would be unjust or oppressive contrary to s. 44(1)(a) of the Act. She noted that the applicant's argument that the nexus between the conduct for which he was punished in Canada and that for which he would be punished in the United States made his surrender unjust or oppressive was similar to his double jeopardy argument. The double jeopardy argument having been rejected, she focused on the applicant's submissions under s. 7 of the Charter that were grounded on the severity of the sentence he was subject to in the United States.

[77] Section 44(1)(a) requires the minister to refuse a surrender order if she is satisfied that "the surrender would be unjust or oppressive having regard to all the relevant circumstances". This provision required her to consider whether a surrender order would be consistent with the principles of fundamental justice under s. 7 of the Charter. It would not be consistent if it would shock the Canadian conscience: United States of America v. Burns, [2001] S.C.R. 283, 2001 SCC 7, at paras. 68-69. The applicant submitted that the severity of the potential sentence that he would receive in the United States would shock the Canadian conscience.

[78] The minister found that the offences the applicant was alleged to have committed were "very serious offences against children, and the potential penalties in the United States are reflective of a growing concern with respect to the sexual exploitation of children over the Internet". She also noted that the courts have repeatedly held that in cases where a person faced a lengthy mandatory minimum sentence in the requesting state, his or her surrender did not violate s. 7 of the Charter, citing, for example, this court's decision in United States of America v. K. (J.H.), [2002] O.J. No. 2341, 165 C.C.C. (3d) 449 (C.A.), leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 501, 101 C.R.R. (2d) 376.

[79] The minister concluded that the applicant's surrender would not shock the Canadian conscience as a consequence of the severity of the sentence he faced in the United States.

[80] On August 3, 2016, the applicant made further submissions to the minister asking her to reconsider her earlier decision to order his surrender. These submissions contained an expert opinion prepared by Betty L. Marak, assistant federal public defender, Middle and Western Districts of Louisiana.

[81] Ms. Marak was very familiar with the Dreamboard prosecutions. She opined that the applicant would receive a sentence of 38 years' incarceration at minimum on a guilty plea for the offence of engaging in a child exploitation enterprise. If convicted after trial, Ms. Marak was of the view that the applicant would be sentenced to life in prison. Ms. Marak also opined that the sentencing factors on which the minister relied to conclude that the applicant would likely not be subject to a disproportionate sentence in the United States would not mitigate the applicant's sentence and that some factors would actually increase it.

[82] By letter dated October 6, 2016, the minister declined to consider the new submissions on the basis that the applicant had not raised any new issues.

(ii) Submissions on the Application for Judicial Review

[83] The applicant submits that the minister's decision that his surrender would not violate s. 7 of the Charter was based on a misapprehension of evidence. He argues that a significant discrepancy between the jeopardy faced by the person sought by the requesting state and that which he would face if convicted in Canada is a factor that tends to make a surrender unjust: Fischbacher, at para. 54. The applicant further submits that this court has recognized that there can be cases where the potential sentence in the requesting state will be so grossly disproportionate to the personal circumstances of the person sought that a surrender would shock the Canadian conscience: see United States of America v. Leonard (2012), 112 O.R. (3d) 496, 2012 ONCA 622, at para. 94.

[84] The applicant also says that the minister further erred in not reconsidering her surrender decision in light of the new facts he presented in his additional submissions and in not concluding that those facts disclosed how his surrender would result in a grossly disproportionate sentence.

(iii) Analysis

[85] I see no basis to interfere with the minister's decision regarding the applicant's potential sentence. The test of whether a sentence "would shock the conscience of Canadians" is a very strict one that constitutionally limits the minister's decision to surrender only in very exceptional circumstances: France v. Diab (2014), 120 O.R. (3d) 174, 2014 ONCA 374, at para. 202, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 317.

[86] The minister correctly applied this test in her s. 7 analysis. She was aware that there was a potential that the applicant could receive life in prison on the American child exploitation charge. However, she recognized that sentencing in the United States would be based on several variables, including the applicant's co-operation with the U.S. authorities; whether he enters a guilty plea; sentencing guidelines and precedent; a pre-sentence report that the applicant could participate in preparing; the fact that he cannot be sentenced on both the child exploitation enterprise offence and the lesser and included conspiracy offences; and his own circumstances and mitigating factors, particularly his time served in custody in Canada.

[87] There is no question, and the minister was certainly aware, that the applicant faces a significant sentence in the United States. However, absent a potential death penalty or sentence that would involve some form of torture, the severity of a sentence will not generally shock the conscience of Canadians: United States of America v. Wilcox, [2015] B.C.J. No. 164, 2015 BCCA 39, 321 C.C.C. (3d) 82, at para. 41, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 124. The sentence the applicant faces in the United Sates would not meet these criteria. Nor would it be so grossly disproportionate to the personal circumstances of the applicant as to shock the Canadian conscience.

[88] I also do not accept the applicant's submission that his sentence would shock the Canadian conscience because he engaged in his activities while in Canada and not the United States. In the American indictment, the applicant is alleged to have been a leader of a sophisticated child pornography enterprise whose harmful impact reached across the Canadian border into the United States. It is a reasonable inference that he knew of the international nature of the organization and that it utilized servers located in the United States. As this court stated in France v. Liang (2007), 88 O.R. (3d) 12, 2007 ONCA 741, at para. 24, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 589, criminals "whose crimes know no borders run the risk that any of the countries harmed by their actions may justifiably demand that they answer for their actions in that country".

[89] Finally, I see no error in the minister's refusal to accept the late submissions of the applicant. The minister was under no obligation to accept those submissions, which were filed nine months after she rendered her initial surrender decision, and her refusal is entitled to deference: Germany v. Schreiber (2007), 87 O.R. (3d) 641, 2007 ONCA 791, at para. 4, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 14.

[90] In any event, I am not satisfied that Ms. Marak's opinion would have made any difference in the minister's surrender decision. The opinion suggested that the applicant would receive a sentence of 38 years on a guilty plea. For the reasons given above, this would not render the decision shocking to the Canadian conscience. Moreover, the opinion confirmed much of what the minister understood would occur on the sentencing, including the fact that the sentencing judge could consider the time spent incarcerated in Canada as a mitigating factor.

(3) Section 6(1) of the Charter

(i) The Minister's Decision

[91] The minister rejected the appellant's submission that his surrender would violate s. 6(1) of the Charter, which provides: "Every citizen of Canada has the right to . . . remain in . . . Canada." In assessing this submission, she followed the framework laid out in United States of America v. Cotroni, [1989] 1 S.C.R. 1469.

[92] The minister stated that the question she had to answer was whether surrendering the applicant to face prosecution in the United States would unjustifiably infringe his right to remain in Canada. She decided that it would not, relying on the following considerations:

• The fact that the applicant was a Canadian citizen was not enough to make his extradition unjustifiable.

• The United States had jurisdiction to prosecute the applicant for the offences for which his extradition was sought.

• Whether the applicant intended to commit offences against American criminal law was irrelevant, as it was beyond the function of the extradition process to assess the sufficiency of the evidence against the applicant.

• American authorities initiated and developed the case against the applicant. The key evidence against him was located in the United States as was the key witness, Mr. Fry, who could be compelled to testify by the American authorities.

• The majority of the other members of Dreamboard who were arrested in the investigation of the website were convicted in the United States, and it was desirable for all of them to face prosecution in the same jurisdiction.

• There were no Canadian charges outstanding against the applicant stemming from his involvement in Dreamboard. He pleaded guilty to related conduct but not the conduct for which the United States sought extradition.

• The applicant could have access to the same rehabilitative programs in Canada and the United States.

(ii) Analysis

[93] The applicant concedes that the minister's decision on this issue should be granted a high level of deference: see United States of America v. Sriskandarajah, [2012] 3 S.C.R. 609, 2012 SCC 70, at paras. 22-23. However, according to the applicant, the minister made three errors in her s. 6(1) Charter decision.

[94] First, the applicant submits that the minister relied on the erroneous conclusion that he had not already been punished for the American offences he faces. For the reasons given above, I am not satisfied that the applicant has been punished for the American offences that he is facing.

[95] Second, the applicant submits that the minister erred in relying on the fact that no charges were pending against the applicant in Canada because, as this court made clear in Leonard, at para. 77, this kind of reasoning evades her responsibility to inquire into the reasons why no further charges would be laid.

[96] I would not accede to this argument. Absent an allegation of bad faith, prosecutorial authorities are not required to disclose their decisions, and the ability to prosecute in Canada is only one of the many factors to be considered in the s. 6(1) Charter analysis: Sriskandarajah, at paras. 27-28. In addition, this court's decision in Leonard is distinguishable because in that case the sole determining factor relied upon by the minister to make a surrender order was the absence of Canadian charges. In the present case, the absence of Canadian charges was just one of several factors relied upon by the minister.

[97] Third, the applicant argues that the minister erred in not giving sufficient weight to the potential for civil commitment in the United States. However, there is no question that the minister considered this issue. She noted that, according to the information provided by the United States, after serving his sentence it would be more likely than not that the applicant would be deported rather than be subject to a civil commitment order.

[98] In addition, the minister went on to analyze whether a potential civil committal may frustrate the applicant's rehabilitation prospects and concluded that it would not. The applicant points out that, according to Ms. Marak's expert opinion, the threat of civil commitment influences many sexual offenders not to seek treatment while imprisoned. That opinion does not detract from the reasonable conclusion reached by the minister that by participating in treatment while in prison in the United States, the applicant would be in a position to argue that he addressed any mental health issues.

[99] In summary, the minister's decision regarding the applicant's s. 6(1) Charter rights was reasonable and does not warrant appellate interference. The minister balanced all of the competing factors and came to a reasonable decision.

F. Disposition

[100] For the foregoing reasons, I would dismiss the application for judicial review.

Application dismissed.

Notes

¹ Beaman J.'s decision was not appealed. Nothing in these reasons should be considered an endorsement of her decision as there is good reason to doubt its correctness. She did not cite or apply the leading authorities on s. 725(1)(c) — R. v. Larche, [2006] 2 S.C.R. 762, 2006 SCC 56 and R. v. Angelillo, [2006] 2 S.C.R. 728, 2006 SCC 55. It is also difficult to understand why it was necessary to consider the applicant's distribution activities when sentencing him on distinct charges that took place while on bail pending his committal hearing.