COURT FILE NO.: 14-90000122-00MO

DATE: 20140911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARCO VISCOMI

– and –

ATTORNEY GENERAL FOR ONTARIO and ATTORNEY GENERAL OF CANADA

Joe Wilkinson and Brad Greenshields, for the Applicant Viscomi

Robert Hubbard and Michael Fawcett, for the Respondent Attorney General for Ontario

Nancy Dennison, for the Respondent Attorney General of Canada

HEARD: September 2, 2014

M.A. CODE J.

REASONS FOR JUDGMENT

A. OVERVIEW

[1] The Applicant Marco Viscomi (hereinafter Viscomi) has been indicted in the United States on charges of sexual coercion of a minor and transporting visual depictions of sexually explicit conduct involving a minor by means of a computer. The offences are alleged to have been committed over the internet on January 6, 2012. The two child victims were at home in Virginia Beach at the time. The accused Viscomi was allegedly in Ontario.

[2] This case has spawned a number of Canadian proceedings involving various parties. It has been the subject of Criminal Code charges in Ontario, prosecuted by the Ontario Attorney-General, as well as proceedings under the Extradition Act initiated on behalf of U.S. authorities by the Attorney-General for Canada. Finally, it has been the subject of proceedings under the Mutual Legal Assistance in Criminal Matters Act (MLACMA), brought at the request of U.S. authorities, approved by the federal Minister of Justice, and initiated in this Court by the Ontario Attorney-General.

[3] I heard the MLACMA proceedings, ex parte, on November 6, 2012 and March 12, 2013. What is now before me is an Application brought by Viscomi seeking to re-open the MLACMA proceedings, and to either quash or amend my earlier orders on the basis of new materials and full inter-partes argument. The Application to Re-Open alleges that I was not sufficiently informed about certain details of the related Criminal Code and Extradition Act proceedings and that, if I had been so informed, I would have given notice and standing to Viscomi, ordered further disclosure to Viscomi, and would not have made the MLACMA Orders that I made in the ex parte proceedings. It is, therefore, important to set out the history of all the inter-related proceedings in some detail before turning to the merits of the Application to Re-Open.

B. HISTORY OF THE PROCEEDINGS

[4] The procedural history of this matter has been slow and complex. The relevant events occurred on January 6, 2012 and were followed by a two month long U.S. police investigation. The two child victims and their father turned over the children’s computer to the police in Virginia Beach. The computer contained a complete account of the internet events, conducted through chat rooms and over Skype. On March 7, 2012, the U.S. police shared the results of their investigation with police in Ontario (the O.P.P.). The U.S. investigation pointed to Viscomi as the perpetrator on the basis of internet subscriber information obtained from Zing Networks, a company located in Ontario. The Ontario police obtained two search warrants on March 21, 2012. They searched two premises associated with Viscomi and seized three laptop computers and external hard drives. After conducting a preliminary analysis of the seizures, Viscomi was arrested and charged in Ontario on March 22, 2012 with two counts of luring a child (s. 172.1 of the Criminal Code), extortion (s. 346), and uttering threats (s. 264.1).

[5] The Ontario charges were laid in Newmarket and they proceeded in the Ontario Court of Justice for a period of about four and a half months. Viscomi was granted bail, initial disclosure was provided, a pre-trial meeting with the Crown was held, and a judicial pre-trial (J.P.T) was scheduled. On August 10, 2012, the date of the scheduled J.P.T., the Ontario charges were withdrawn. The Crown indicated that the withdrawal was due to the commencement of extradition proceedings and that the Ontario charges would be reinstated if the U.S extradition request failed.

[6] The U.S. request for extradition commenced on August 7, 2012 when the Record of the Case (R.O.C.) was certified by an Assistant U.S. Attorney. On August 9, 2012, the Canadian Minister of Justice granted Authority to Proceed and Viscomi was arrested on a provisional extradition warrant. On August 16, 2012, Benotto J., as she then was, denied bail on the secondary grounds, “for the protection of the public”. She stated that the facts of the case “are horrific. They suggest systemic psychological and physical abuse of children … The allegations involve sadistic, sexualized conduct with children which verges on torture”.

[7] Benotto J. scheduled November 1, 2012 as the date for a one day extradition hearing in this Court. On October 4, 2012, counsel for Viscomi filed a Notice of Application in this Court, seeking further disclosure in the extradition proceedings. The further disclosure concerned the fruits of the Ontario search warrants. The next day, October 5, 2012, counsel for the Attorney-General of Canada responded to this Application for further disclosure by way of a Notice of Application of its own, seeking to summarily dismiss the defence Application as “frivolous and vexatious”, pursuant to Rule 6.11(2) of the Criminal Proceedings Rules. The Application to dismiss asserted that the U.S. extradition request relied exclusively on the fruits of the U.S. investigation, as set out in the R.O.C., and not on the fruits of the two Ontario search warrants.

[8] McWatt J. heard the Attorney-General’s Application to summarily dismiss Viscomi’s Application for further disclosure on October 11, 2012 in Practice Court. She granted the Application and dismissed Viscomi’s request for further disclosure. Her Endorsement was released to the parties on October 22, 2012. In light of these developments, counsel for Viscomi appeared before Trafford J. in Practice Court on October 26, 2012 and applied for an adjournment of the November 1, 2012 extradition hearing. In particular, counsel submitted that he was considering whether to renew the Application for disclosure at the extradition hearing, on the basis of further and better material than what he had placed before McWatt J., and that he needed time to take instructions in this regard. Trafford J. granted the adjournment and rescheduled the extradition hearing, now as a two day hearing, on March 28 and 29, 2013.

[9] Counsel for Viscomi initially filed an Application in the Court of Appeal, seeking to review Benotto J.’s Order detaining Viscomi. However, this bail review was not pursued and Viscomi remained in custody pending his extradition hearing. In addition, the Application for further disclosure of the fruits of the two Ontario search warrants was not renewed on further and better material, presumably after Viscomi’s counsel had looked into the matter and taken instructions from his client.

[10] During this hiatus in the extradition proceedings, the Ontario Attorney-General brought on two ex parte Applications for a Gathering Order, pursuant to s. 17(2) of MLACMA. The two Applications related to the fruits of the Ontario search warrants, which were still being held by the O.P.P., and to the internet subscriber records held by Zing Networks. I granted two Gathering Orders on November 6, 2012 and two Sending Orders on March 12, 2013. Pursuant to the ordinary practice of this Court, the Applications proceeded in chambers on the basis of the Attorney-General’s written materials, without the necessity of counsel appearing. Section 17(2) of MLACMA requires ex parte proceedings in relation to the initial Gathering Orders. Section 20(2) provides for a discretion to give notice to interested parties at the subsequent Sending Orders stage. I did not give notice to any interested party.

[11] The extradition hearing was held before Campbell J., on April 11 and 12, 2013. The only issue at the hearing was the sufficiency of the U.S. circumstantial evidence, set out in the R.O.C., identifying Viscomi as the perpetrator of the offences. The U.S. police investigation had obtained the screen name and account name used by the perpetrator from the computer belonging to the two Virginia Beach child victims. An administrative subpoena to the web site Skype, which was used by the perpetrator to commit the offences, provided the U.S. police with the internet protocol address that was associated with the perpetrator’s screen name and account name. That internet protocol address was registered with Zing Networks, an Ontario internet service provider. The U.S. police were advised by Zing Networks that Viscomi was the person assigned this internet protocol address. On the basis of this circumstantial evidence, emerging entirely from the U.S. investigation and as set out in the R.O.C., Campbell J. concluded that there was sufficient evidence to extradite Viscomi. None of the Canadian evidence, gathered pursuant to the two Ontario search warrants and the two MLACMA Orders, was put before Campbell J. at the extradition hearing. His written Reasons were released to the parties on May 24, 2013. See: U.S.A. v. Viscomi, 2013 ONSC 2829.

[12] On June 17, 2013, Viscomi appealed to the Court of Appeal from Campbell J.’s committal order and from McWatt J.’s earlier decision summarily dismissing his Application for further disclosure. On June 21, 2013, counsel for Viscomi provided written submissions to the Minister of Justice, arguing on various grounds that surrender to the U.S. authorities should be refused. Viscomi also asked the Minister to make disclosure of the fruits of the two Ontario search warrants. On September 6, 2013, the Department of Justice provided counsel for Viscomi with a copy of the submissions made to the Minister by counsel in the Department. Those submissions made reference to the fact that the fruits of the two Ontario search warrants, and the Zing Networks records, had been shared with the U.S authorities pursuant to MLACMA Orders. Finally, on October 17, 2013, the Minister of Justice wrote to counsel for Viscomi and set out his reasons for ordering the surrender of Viscomi to the U.S. authorities. His letter referred three times to the MLACMA Orders in the context of explaining, inter alia, that Viscomi could obtain disclosure of the fruits of the Ontario search warrants from the U.S. prosecutors.

[13] Counsel for Viscomi filed a Notice of Application in the Court of Appeal on November 18, 2013, seeking judicial review of the Minister’s surrender decision. On January 17, 2014, counsel filed their Factum on the appeal from Campbell J.’s and McWatt J.’s decisions in the extradition proceedings. No issue was raised by counsel concerning the MLACMA Orders. In addition, no appeal was launched from the MLACMA Orders, pursuant to s. 35. That provision of MLACMA requires that an application for leave to appeal be made within fifteen days of the Order. Given that Viscomi had only learned of the ex parte MLACMA Orders on September 6, 2013, a request for an extension of time would have to have been included in any s. 35 appeal. Nevertheless, no s. 35 appeal was commenced.

[14] At some point in early January 2014, Viscomi discharged the lawyers who had been acting for him throughout the prior proceedings and he retained his present counsel. On January 24, 2014, the new lawyers obtained Viscomi’s file from his previous lawyers. I should note that the previous lawyers are well known, experienced, and respected members of the bar, as are Viscomi’s present lawyers. On March 10, 2014, the new lawyers obtained a copy of the ex parte records filed with this Court in the MLACMA proceedings. I am advised by Mr. Wilkinson that on March 24, 2014 the parties appeared in the Court of Appeal before Hoy A.C.J.O. and a timetable was set for perfecting Viscomi’s judicial review from the Minister’s surrender decision. Viscomi’s new lawyers advised that they wished to re-open proceedings before the Minister by making a further submission. Hoy A.C.J.O. gave counsel for Viscomi forty-five days to file this further submission with the Minister and then thirty days, after receiving the Minister’s response, to perfect the judicial review in the Court of Appeal.

[15] On May 9, 2014, counsel for Viscomi brought the present Application to Re-Open the MLACMA proceedings. It was made returnable on May 26, 2014 and came on before Ducharme J. in Practice Court. He ordered the parties to appear before me on June 2, 2014, to set a date for hearing the Application to Re-Open. The parties appeared before me on June 2, 4 and 6, 2014, in the midst of a jury trial, and efforts were made to schedule the Application to Re-Open within the next few weeks. These efforts proved unsuccessful, given the demands on counsel’s calendars, and the hearing date was set for September 2, 2014.

[16] I am advised by counsel that the Minister has not yet responded to Viscomi’s further submission, seeking to re-open the surrender decision. As a result, counsel for Viscomi has not yet perfected the judicial review of the Minister’s surrender decision. Given the Court of Appeal’s practice of hearing the judicial review of the surrender decision together with the appeal from the committal order, at a single hearing, the appeal and judicial review in the extradition proceedings have not yet taken place.

[17] The further submission to the Minister made by counsel for Viscomi, seeking to re-open the surrender decision, would have been made in April or May 2014, given the terms of Hoy A.C.J.O.’s Order. This submission to the Minister has not been provided to the Respondents on the present Application to Re-Open the MLACMA proceedings. As a result, it is unknown whether the Minister has been asked to await my decision, before deciding whether to re-open his own surrender decision. In any event, the Minister has not yet responded and the appeal and judicial review have not yet been heard in the Court of Appeal. Meanwhile, Viscomi has remained in custody, detained in relation to the extradition proceedings.

C. JURISDICTION TO RE-OPEN MLACMA PROCEEDINGS AND THE ATTORNEY-GENERAL’S PRELIMINARY OBJECTIONS

[18] The Court of Appeal has held that Orders made ex parte by this Court, under the MLACMA legislation, are subject to inter partes review pursuant to the Court’s inherent jurisdiction. See: United Kingdom v. Ramsden (1996), 1996 1527 (ON CA), 108 C.C.C. (3d) 289 at paras. 62-3 (Ont. C.A.); R. v. Budd (2000), 2000 17014 (ON CA), 150 C.C.C. (3d) 108 at para. 14 (Ont. C.A.). In both of these cases, the Court relied on the well-known decision of the Supreme Court in R. v. Wilson (1983), 1983 35 (SCC), 9 C.C.C. (3d) 97 at 123-4 (S.C.C.). In that case, McIntyre J. gave the majority judgment and held that an ex parte wiretap authorization issued by a Superior Court judge could be reviewed by that judge, or by another judge of the same Court, on an inter partes basis. He reasoned as follows:

Since no right of appeal is given from the granting of an authorization and since prerogative relief by certiorari would not appear to be applicable (there being no question of jurisdiction), any application for review of an authorization must, in my opinion, be made to the court that made it There is authority for adopting this procedure. An authorization is granted on the basis of an ex parte application. In civil matters, there is a body of jurisprudence which deals with the review of ex parte orders. There is a widely recognized rule that an ex parte order may be reviewed by the judge who made it. In Dickie v. Woodworth (1883), 1883 51 (SCC), 8 S.C.R. 192 at p. 195, Ritchie C.J. said:

The judge having in the first instance made an ex parte order, it was quite competent for him to rescind that order, on its being shown to him that it ought not to have been granted, and when rescinded it was as if it had never been granted …

I would accept these words in the case of review of a wiretap authorization with one reservation. The reviewing judge must not substitute his discretion for that of the authorizing judge. Only if the facts upon which the authorization was granted are found to be different from the facts proved on the ex parte review should the authorization be disturbed. It is my opinion that, in view of the silence on this subject in the Criminal Code and the confusion thereby created, the practice above-described should be adopted. [Emphasis added.]

[19] Wilson was a pre-Charter case and it has been held that the restrictive Wilson requirement, of conducting any review before the issuing judge or issuing court, does not apply in the context of post-Charter domestic criminal trials where the trial judge can review search and seizure orders. However, MLACMA proceedings are not domestic criminal trials and the Wilson procedure is, therefore, an available means of review in addition to the s. 35 right of appeal. Even in the context of modern criminal trials, it has been held that the standard of review on a s. 8 Charter Motion bears some resemblance to that set out by McIntyre J. in Wilson in the passage highlighted above, in particular, the judge on the inter partes review “must not substitute his discretion for that of the authorizing judge”. As Sopinka J. stated on behalf of the majority in R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 at 187-8 (S.C.C.), the case that limited the application of the Wilson procedure in the context of modern criminal trials:

While a judge exercising this relatively new [Charter] power need not comply with the Wilson criteria, he should not review the authorization de novo. The correct approach is set out in the reasons of Martin J.A. in this appeal. He states (at p. 119):

If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter.

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [Emphasis added.]

Also see R. v. Budd, supra at paras. 14-23, where Rosenberg J.A. gave the judgment of the Court and held that the standard of review pursuant to the Wilson procedure, in inter partes MLACMA proceedings, is the same as the above Garofoli standard of review on a Charter Motion in a domestic criminal trial.

[20] In light of the above authorities, it is clear that I have jurisdiction to hear Viscomi’s Application to Re-Open but only on the basis set out in Wilson and in Garofoli. In other words, it is not a de novo hearing where I can simply exercise a fresh discretion. The issue is whether, in light of the much fuller inter partes record that is now before me, there remains some basis on which the original orders could have been made. This standard of review achieves a balance between the need to prevent frauds on the Court, on the one hand, while also respecting the need for some finality in relation to Court Orders.

[21] Mr. Hubbard, on behalf of the Attorney-General for Ontario, raised a number of preliminary objections to any exercise of the Court’s inherent jurisdiction, on the particular facts of this case. He forcefully submitted that Viscomi had not established a sufficient interest in the seized materials to be granted standing, that there had been egregious delays in seeking the present relief, that the seized/gathered materials had already been sent to the U.S. authorities, and that there were alternate remedies available to Viscomi such as a s. 35 MLACMA appeal and/or the extradition proceedings presently before the Court of Appeal and before the Minister.

[22] There is considerable force to some of these arguments. However, in the interests of hopefully bringing finality to these much delayed proceedings, I have decided that it is better to consider the merits of the Application to Re-Open.

D. THE ALLEGED MATERIAL NON-DISCLOURE IN THE ORIGINAL MLACMA APPLICATIONS BROUGHT EX PARTE BY THE ATTORNEY GENERAL

(i) Introduction

[23] Viscomi alleges a number of areas of material non-disclosure in the original MLACMA Applications, seeking Gathering Orders and Sending Orders, that were brought ex parte by the Attorney General on the basis of an Affidavit sworn by the lead O.P.P. investigator in this case. The four main areas of alleged non-disclosure can be summarized as follows:

• First, the ex parte Affidavits filed before me in the MLACMA proceedings disclosed the fact of the Ontario search warrants, the withdrawn Criminal Code proceedings in Newmarket, and the extradition proceedings pending in this Court. However, the ex parte materials “did not disclose that the Applicant had raised issues about the legality of the March 21, 2012 searches and seizures”, as counsel for Viscomi put it in his Factum filed before me on the inter partes review;

• Second, the ex parte materials did not disclose that Viscomi had been “seeking access to disclosure” of the fruits of the Ontario search warrants, in order to advance a defence on the merits at the extradition hearing, that McWatt J. had summarily dismissed this Application for further disclosure as “frivolous and vexatious”, that Trafford J. had then adjourned the extradition hearing in order to allow some time “to regroup in the wake of the adverse ruling of McWatt J”, and that “the Applicant would seek to revisit McWatt J.’s ruling by a renewed Application or, if necessary, on appeal”, again quoting from counsel’s Factum before me;

• Third, the ex parte materials did not disclose that the U.S. police investigation had relied on warrantless procedures under the Personal Information Protection and Electronic Documents Act (P.I.P.E.D.A.), in “circumvention” of M.L.A.C.M.A, in order to obtain the Zing Networks records, and that Viscomi “would have been entitled to argue that the original search warrant in Canada and the Gathering Order were premised upon evidence obtained as a result of a breach of the Applicant’s s. 8 Charter rights,” again quoting from counsel’s Factum before me;

• Fourth, that the ex parte materials did not disclose “the legal authority for the O.P.P. to have continued to lawfully detain the property seized pursuant to warrant, following the withdrawal of the domestic charges on August 10, 2012”, and that “the lawfulness of the detention of the property by the O.P.P. was a factor for the [MLACMA] application judge to consider”, as counsel put it in his Factum before me.

[24] There were other aspects of non-disclosure alleged by Viscomi, such as the fact that he was opposing extradition and that he was seeking further disclosure of the fruits of the Ontario search warrants in order to assist him in appealing Benotto J.’s decision denying bail. These grounds were not pressed or pursued at the inter partes hearing before me. It was implicit in the ex parte materials that extradition was being opposed, as there was no suggestion that Viscomi had consented to extradition in the months following his August 9, 2012 arrest, and there was no suggestion that the U.S. request for extradition had been granted. As to Viscomi’s asserted need for further disclosure, in order to appeal the adverse bail decision, Mr. Wilkinson conceded that the Court of Appeal would have jurisdiction to order further disclosure, if Viscomi had pursued a bail review in the Court of Appeal and if he had established his need for further disclosure in order to effectively pursue that bail review, beyond the disclosure that he had received at the initial bail hearing before Benotto J. No such bail review has been pursued in the over two year period since Benotto J. made the original bail decision. Accordingly, this issue is academic.

[25] I will address each of the four main areas of alleged material non-disclosure summarized above. Viscomi submits that these four instances of non-disclosure, either standing alone or cumulatively, would have provided a sufficient basis for this Court to give notice and allow participation by counsel for Viscomi at a s. 20(2) MLACMA hearing. It is further submitted that such inter partes participation, given the full record that is now before the Court, would have resulted in either outright refusal of a s. 20(1) Sending Order or the imposition of terms and conditions, such as delaying the Sending Order pending final disposition of Viscomi’s appeal and judicial review in the extradition proceedings.

[26] In relation to the above remedies sought by Viscomi, a number of guiding principles must be remembered. First, MLACMA proceedings “are presumptively ex parte” and parties to these proceedings have “a duty by treaty to use their best efforts to maintain the confidentiality of the MLAT application”. See: U.S.A. v. Lane, 2014 ONCA 506 at paras. 33 and 40. Furthermore, it has repeatedly been held that Viscomi’s status, as the target of the investigation, is not a sufficient basis for providing notice and granting standing at a MLACMA hearing. Indeed, it is “against public policy to allow the subject of a criminal investigation to meddle in the investigatory process on no other basis than his/her status as target of the investigation”. See: United Kingdom v. Ramsden, supra at paras. 39-40 and 63; Re National Cheese and Food Co. (1998), 1998 1089 (ON CA), 38 W.C.B. (2d) 281 at para. 13 (Ont. C.A.). Finally, the legislative objective of the MLACMA scheme is “to provide the widest measure of mutual legal assistance in criminal matters in a prompt and efficient manner” and routinely or regularly giving notice to interested parties “would be contrary to the intended expediency of the process”. See: United Kingdom v. Ramsden, supra at paras. 40 and 53; U.S.A. v. McAmmond (2005), 2005 20 (ON CA), 192 C.C.C. (3d) 149 at para. 35 (Ont. C.A.).

[27] The above principles must be borne in mind when assessing whether any of the areas of alleged non-disclosure would or could have resulted in any of the remedies now sought by Viscomi on the inter partes review of the original ex parte Orders.

(ii) The first area of alleged non-disclosure: “the legality of the March 21, 2012 searches and seizures” was an issue that Viscomi had raised

[28] There are numerous frailties in Viscomi’s submission that I would have granted him notice and standing at a s. 20(2) MLACMA hearing, had I known that he had raised issues about the “legality” of the two Ontario search warrants.

[29] First, Viscomi had full disclosure of the two Ontario search warrant Informations and they have now been filed before me on the inter partes review. They are thorough and detailed and they set out a strong basis, in my view, for the two Justice of the Peaces’ conclusion that the statutory and constitutional requirement of “reasonable and probable grounds” to search Viscomi’s premises had been satisfied. Second, Viscomi never brought certiorari to quash these search warrants, once the domestic charges were withdrawn on August 10, 2012, in spite of the availability of this longstanding common law means of challenging the lawfulness of the warrants. Similarly, no s. 8 Charter Motion was ever commenced in relation to the searches. See: R. v. Zevallos (1987), 1987 169 (ON CA), 37 C.C.C. (3d) 79 (Ont. C.A.). Third, counsel for Viscomi filed a Factum before McWatt J. on the Application seeking disclosure of the fruits of the search warrants. That Factum, which has now been filed before me, alleged in bald conclusory terms that “there are deficiencies amounting to constitutional violation in the search warrants themselves”. In spite of the burden on Viscomi, to show some “air of reality” to the asserted need for further disclosure on this basis, none of these alleged “deficiencies” were set out, either in the Factum or in oral argument before McWatt J. See: U.S.A. v. McAmmond, supra at paras. 28-39 (Ont. C.A.); U.S.A. v. Larosa (2002), 2002 45027 (ON CA), 166 C.C.C. (3d) 449 at para. 76 (Ont. C.A.); U.S.A. v. Kwok (2001), 2001 SCC 18, 152 C.C.C. (3d) 225 at paras. 97-109 (S.C.C). Fourth, counsel sought additional time to “regroup”, to take instructions, and to decide whether to file further and better materials, and to then “revisit” McWatt J.’s ruling. Trafford J. acceded to this request and granted an adjournment of the extradition hearing. No such renewal of the disclosure Application was forthcoming in the months following the adjournment. Fifth and last, McWatt J.’s ruling that the disclosure application was “frivolous and vexatious”, would also have been disclosed to me as necessary context for this alleged area of material non-disclosure in the MLACMA proceedings.

[30] For all these reasons, there is no merit to the submission that Viscomi had raised issues about the “legality” of the Ontario search warrants and that I would have given him notice and standing to appear before me in order to make this argument, had I known about it. Viscomi had abundant opportunities and means to attack the search warrants and he simply never made out any “air of reality” to the suggestion that the warrants were unlawful. Had there been any “real substance” to any Charter issue raised by Viscomi concerning the Ontario searches and seizures, as Blair J.A. put it in U.S.A. v. McAmmond, supra, then the Crown would have been duty bound to inform me of all the circumstances so that I could properly consider whether to give notice to Viscomi at the s. 20(2) stage of the MLACMA proceedings. There were simply no such circumstances in this case. Also see: U.S.A. v. Lane, supra at para. 43.

[31] Mr. Wilkinson did not press this alleged area of non-disclosure at the inter partes hearing before me. I am not persuaded that any non-disclosure in relation to this issue was material and would or could have made any difference to the result.

(iii) The second area of alleged non-disclosure: Viscomi’s need for access to the fruits of the Ontario search warrants in order to advance his case at the extradition hearing

[32] As noted above, the one live issue at the extradition hearing was whether the circumstantial evidence assembled through the U.S. investigation and set out in the R.O.C., was sufficient to identify Viscomi as the perpetrator. Mr. Wilkinson forcefully submitted that Viscomi needed access to the fruits of the O.P.P. search and seizure of the laptop computer in order to have a defence expert carry out a forensic analysis of the computer and then be able to rebut or weaken the inference, at the extradition hearing, that Viscomi was the perpetrator. In other words, the suggestion was that the computer might contain exculpatory or simply useful evidence that could be called at the extradition hearing in relation to the issue of identity. Mr. Wilkinson submitted that, had I known about this issue, I would have given Viscomi notice and standing and would, at a minimum, have delayed the Sending Order pending Viscomi’s appeal from McWatt J.’s ruling, in order to preserve this evidence. One of the express powers set out in s. 20(2) of MLACMA concerns the imposition of terms and conditions relating to the “preservation” of evidence required in Canada.

[33] The major impediment to this argument is that Viscomi’s former counsel made the same submission before McWatt J. and she concluded that it was “frivolous and vexatious”. Once again, Trafford J. gave counsel a generous amount of time to “regroup”, to obtain instructions, to file further and better materials concerning this issue, and to then “revisit” the issue before the judge at the extradition hearing, or before some other judge of this Court in advance of the hearing. Viscomi’s very able former lawyers filed no such further and better materials and never “revisited” McWatt J.’s ruling in this Court.

[34] If there was any “air of reality” to the suggestion that a defence expert’s analysis of the computer might yield helpful or exculpatory evidence, in relation to the issue of identity, it would have been an easy matter to put some such material before Benotto J., before McWatt J., before Campbell J., or before me on the inter partes hearing. No such material has been forthcoming. Accordingly, this second area of alleged non-disclosure suffers from many of the same deficiencies as the first area of alleged non-disclosure, already analyzed above.

[35] The enlarged record now before me on the inter partes hearing includes various Ontario search warrant Informations, the viva voce testimony of the Crown’s forensic expert at the bail hearing before Benotto J., the Factum and oral argument on the disclosure Application before McWatt J., and the oral argument before Trafford J. on the adjournment Application. This enlarged record contains evidence that bears on the issue of whether forensic analysis of the seized computer would or could be useful to Viscomi. It discloses the following:

• the O.P.P. executed the first Ontario search warrant at Viscomi’s parents’ home in Stouffville as the police had information that Viscomi resided there;

• upon executing this first search warrant on March 21, 2012, Viscomi’s sister informed the O.P.P. that Viscomi “had just left on the 18^th day of March 2012 to a residence located in Chatham-Kent, Ontario”, that Viscomi “resides there as a medical student”, and, most importantly, that Viscomi “had his laptop computer with him”;

• the O.P.P. then obtained the second Ontario search warrant that same day, executed it at the Chatham-Kent hospital residence, and seized a laptop computer, an external hard drive, a CD-ROM, a laptop computer bag, and a passport;

• the O.P.P. began a forensic analysis of the seized materials;

• by the time of the bail hearing before Benotto J., the forensic imaging of “a laptop computer that was seized from Mr. Viscomi” and “the external hard drive” was not yet complete but, according to the O.P.P. expert, it had yielded “user accounts that seemed to be primarily related to the charges at hand, which are communications with young women, for the purpose of enticing them into various levels of exposing themselves or sexual conduct … most of the people that he was communicating with were young women … this information appeared to make these young women concerned, some of them appeared to be scared … the suspect claims I have put a Trojan on your computer, and if you don’t do what I say … I will activate it and destroy your computer. The vast majority of these young ladies become increasingly scared, apprehensive and again the vast majority of them start to do as he wishes. And he initially starts with, all I want you to do is from the waist up, please expose your breasts … and then he further extorts them to do various continual exposure below the waist, and also including various sexual acts that he gets them to perform … there were several images of young ladies … I have located approximately seventeen or eighteen different young ladies through what’s called the video snapshots which is a process through Skype where you can take a screen capture of the person you are talking to … Some of exposing their breasts, some of them exposing genitalia, some of them performing sexual acts on themselves”;

• there was no cross-examination of the O.P.P. expert as to the reliability or probative value of the above analysis of the seized laptop computer;

• no evidence or material of any kind was put before Benotto J., McWatt J., Campbell J. or myself to suggest that forensic analysis of the seized laptop computer might yield helpful or exculpatory evidence.

[36] It would have been an easy matter to put some kind of material before the Court, at one of these inter partes hearings, suggesting that the laptop computer seized from Viscomi’s residence at the Chatham-Kent hospital was, in fact, not his computer or that someone else had a key to his room or that someone else had the password to his computer or that the O.P.P. expert’s analysis was somehow unreliable, if such material existed. No such material has ever been filed in the over two year period that has passed since the seizures at the Chatham-Kent residence and since the O.P.P. expert testified before Benotto J.

[37] The overwhelming inference from the full inter partes record now before me is that forensic analysis of the laptop computer and hard drive seized at the Chatham-Kent residence is damaging to Viscomi’s case. Counsel’s bald unsupported assertions, that disclosure of the computer might be helpful in the context of an extradition hearing, are simply speculative and cannot rise to the “air of reality” level required by the case law. See: U.S.A. v. Larosa, supra at paras. 76-81 and 85; R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 at para. 35 (S.C.C.) It must be remembered that the U.S. authorities did not have the fruits of the Ontario search warrants when they sought extradition and the R.O.C. contained no reference to the fruits of the Ontario search warrants. The alleged need for disclosure of apparently unhelpful material, not relied on by the U.S. at the extradition hearing, is simply not a realistic basis on which notice and standing would or could have been granted at the s. 20(2) MLACMA hearing. I am not persuaded that any non-disclosure in this area had any impact on the result.

(iv) The third area of alleged non-disclosure: the warrantless seizure of the subscriber information from Zing Networks

[38] The ex parte materials placed before me in the MLACMA proceedings made it clear that the U.S. police investigators obtained the Zing Networks subscriber information without obtaining an Ontario search warrant and without obtaining a MLACMA Gathering Order. The O.P.P. Affiant stated:

Zing Networks, an ISP provider located in Ontario, voluntarily provided the [Virginia Beach] police with subscriber information for the above IP address which demonstrated that Zing Networks maintained the IP address during the above-noted time period, and that the subscriber is Mark Viscomi of 17 Elia Drive, Stouffville, Ontario. [Emphasis added.]

[39] The O.P.P. Affiant went on to make it clear that he relied on the above information from the U.S. police and simply confirmed Viscomi’s Ontario address in Stouffville, from a check of driver’s license records, before applying for the Ontario search warrants. In other words, it was apparent that the Ontario search warrants depended on the fruits of the warrantless seizure of the subscriber information from Zing Networks by the U.S. authorities. In short, this was all transparent in the ex parte MLACMA proceedings and there was no material non-disclosure in relation to this issue.

[40] Mr. Wilkinson made two legal arguments about the above record. First, he submitted that the U.S. authorities could not lawfully proceed in the above fashion and that they had to invoke MLACMA procedures in order to get the subscriber information from Zing Networks. Second, he submitted that the recent decision of the Supreme Court of Canada in R. v. Spencer, 2014 SCC 43, has changed the law in this area, that the police must now get a search warrant to obtain subscriber information, and that Viscomi is entitled to the benefit of this change in the law. In my view, neither argument is sound.

[41] The submission that the U.S. authorities “circumvented” MLACMA, by obtaining the Zing Networks records “voluntarily”, is based on a misconception as to the effect of the MLACMA legislation. Doherty J.A. gave the judgment of the Court in Russian Federation v. Pokidyshev (1999), 1999 3787 (ON CA), 138 C.C.C. (3d) 321 at para. 19 (Ont. C.A.), and stated that the MLACMA legislation enacts a regime that applies where “compulsory measures” are needed to assist a foreign investigation. Similarly, in United Kingdom v. Ramsden, supra at para. 4, Charron J.A., as she then was, gave the judgment of the Court and referred to the legislative purpose of MLACMA, based on certain statements made in Parliament when the statute was first introduced. The Minister of Justice had referred to “informal cooperation between police forces” as the traditional means of sharing investigative information, and asserted that it was still “useful and necessary” but that it now required supplementing. The MLACMA legislation embodies this principle in s. 3(2) which states:

(2) Nothing in this Act or an agreement shall be construed as to abrogate or derogate from an arrangement or practice respecting cooperation between a Canadian competent authority and a foreign or international authority or organization.

[42] In U.S.A. v. Mathurin (2013), 2013 ONSC 2575, 281 C.R.R. (2d) 177 at paras. 44-6 (Ont. S.C.J.), Quigley J. described the purpose and effect of MLACMA in the following terms:

Contrary to the Applicant’s contention, however, there is no legal requirement for the police to obtain prior judicial authorization in every case before sending evidence to a foreign country and MLACMA is not the exclusive means for lawfully gathering and sending evidence from Canada to another state.

The MLACMA legislation itself makes this clear. It explicitly states in subsection 3(2) that nothing in the statute is to be construed in a manner which would abrogate or derogate from an arrangement or practice respecting cooperation that may be in place between a Canadian competent authority and a foreign or international authority or organization. The Treaty also contains a similar provision at Article III, s.1, which recognizes that it does not detract from “other agreements, arrangements or practices” under which the Parties may provide assistance to each other. Thus, MLACMA is meant to supplement, not replace, existing arrangements or practices between Canadian and foreign police forces or prosecutorial authorities.

The purpose of MLACMA is to implement Canada’s international obligations as set out in the treaties to which Canada is a signatory. It was meant to fill a void. It provided a means by which Canada could fulfill its international obligations by creating evidence gathering mechanisms that did not already exist under Canadian law. However, its passage did not erase any pre-existing practices or arrangements that are in place for sharing information and evidence and for joint and cooperative investigation of cross- border crime, particularly between Canada and the United States. To read it as imposing legal requirements that supersede or eliminate those established practices undertaken in accordance with provisions of domestic law not only flies in the face of the clear language of the statute, but would be inconsistent with its purpose which is to facilitate international cooperation. [Italics of Quigley J. in the original, underlining added.]

Also see: U.S.A. v. Pavlicevic (2008), 2008 BCSC 410, 77 W.C.B. (2d) 476 at paras. 64-70 (B.C.S.C.).

[43] I agree with the propositions set out above in Mathurin. In my view, it is simply common sense that the U.S. police are entitled to obtain information about a U.S. crime from a witness located in Canada who is willing to voluntarily assist, without unnecessarily invoking the “compulsory measures” that are found in MLACMA, provided the Canadian witness is not violating Canadian law by voluntarily assisting the U.S. police. To give a simple example, a Canadian on vacation in Florida might witness a crime and then return home to Canada. The Florida police would be entitled to phone that witness and conduct an interview and obtain relevant documents from the witness, provided the Canadian witness was willing to voluntarily cooperate with the U.S. police and provided no law in Canada prevented such voluntary cooperation.

[44] Viscomi conceded, correctly, that the law in Ontario did not require a warrant in order to obtain ISP subscriber information at the time of the MLACMA Applications in this case. Counsel for Viscomi stated the following, in this regard, in his Notice of Application to Re-Open:

Before the Supreme Court of Canada judgment in R. v. Spencer, 2014 SCC 43 (released on June 13, 2014) the Court of Appeal for Ontario in R. v Ward, 2012 ONCA 660, [2012] O.J. No. 4587 (released on October 2, 2012) had held that there was no reasonable expectation of privacy in subscriber information held by an Internet Service Provider (“ISP”). Ward was the state of the law in Ontario at the time of the ex parte proceedings under the Mutual Legal Assistance in Criminal Matters Act (“MLACMA”), and at the time of the May 24, 2013 committal Order. On June 13, 2014, Spencer overruled Ward and established that there is a reasonable expectation of privacy in subscriber information held by an ISP and that a request by a police officer that an ISP voluntarily disclose such information amounts to a search for the purposes of section 8 of the Canadian Charter of Rights and Freedoms;

Throughout the committal hearing, the surrender decision of the Minister, and during the ex parte MLACMA hearings, Courts in Ontario were bound by Ward, which had wrongly interpreted s. 8 of the Charter as unengaged by the voluntary production of subscriber information to law enforcement officials.

Before the judgment of the Supreme Court of Canada in Spencer, Ward was the prevailing law and there was no basis for this Court to exercise its discretion to give the applicant notice of the Sending hearing solely on the basis of potential violation of his right to be secure against unreasonable search or seizure under s. 8 of the Charter of Rights and Freedoms; [Emphasis added.]

[45] I agree with the above statements of law. At the time when the ex parte MLACMA proceedings were before me, in November 2012 and March 2013, the law in Ontario was as set out in R. v. Ward (2012), 2012 ONCA 660, 112 O.R. (3d) 321 (C.A.). That case held that any reasonable expectation of privacy in ISP subscriber information was subject to P.I.P.E.D.A. compliant requests by the police for voluntary production of subscriber information. That is exactly what happened in this case and it was entirely lawful at the time.

[46] This leads me to Mr. Wilkinson’s second point, namely, that R. v. Spencer, supra has changed the law and has overruled R. v. Ward, supra. Now a warrant is required to obtain this kind of ISP subscriber information. Viscomi seeks the benefit of this change in the law, in order to argue retrospectively that the Zing Networks warrantless seizure, and all the subsequent warranted seizures that relied on it, including the MLACMA Gathering Order, all violated his s. 8 Charter rights.

[47] Spencer was not decided until June 13, 2014. By that time, Viscomi’s MLACMA proceedings had been completed and were no longer “in the judicial system”, as that term is used in R. v. Wigman (1987), 1985 1 (SCC), 33 C.C.C. (3d) 97 (S.C.C.), the leading authority on retrospective application of changes in the law. Viscomi had known about the ex parte MLACMA proceedings since September 6, 2013, that is, for over nine months by the time Spencer was decided on June 13, 2014. No MLACMA appeal had been launched under s. 35 and the case was, therefore, not “in the judicial system” for purposes of the rule enunciated in R. v. Wigman, supra. In that case, Wigman had already commenced an appeal from his conviction for attempt murder at the time when the Supreme Court of Canada decided R. v. Ancio (1984), 1984 69 (SCC), 10 C.C.C. (3d) 385 (S.C.C.), which overruled its prior decision in R. v. Lajoie (1973), 1973 146 (SCC), 10 C.C.C. (2d) 313 (S.C.C.) and significantly changed the law of attempt murder. Wigman was, therefore, entitled to the benefit of the change in the law as his case was still “in the system”. However, those cases that were no longer “in the system” were not entitled to the benefit of the change in the law, even if the prior law had been unconstitutional. As the Court put it in a unanimous judgment (R. v. Wigman, supra at pp. 104 and 108-9):

The appropriate test is whether or not the accused is still in the judicial system. As expressed in the Crown’s factum, this test affords a means of striking a balance between the “wholly impractical dream of providing perfect justice to all those convicted under the overruled authority and the practical necessity of having some finality in the criminal process”. Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata: a matter once finally judicially decided cannot be relitigated. Thus a person convicted under Lajoie will not be able to reopen his or her case, unless, of course, the conviction is not final. In the Reference re Language Rights under Manitoba Act, 1870 (1985), 1985 33 (SCC), 19 D.L.R (4^th) 1 at pp. 28-9 (S.C.C.), the court observed that res judicata would even preclude the reopening of cases decided by the courts on the basis of constitutionally invalid laws. The res judicata principle would apply with at least as much force to cases decided on the basis of subsequently overruled case law.

The determinative factor in the case at bar is that the appellant became entitled to bring into question the validity of his conviction on any question of law at a time when this court had just reversed its own interpretation of attempted murder. The appellant is thus entitled to invoke the new question of law raised by reason of Ancio in accordance with s. 618(1)(b) Criminal Code. He has established that he was “in the system” since he still had an appeal pending before this court when Ancio was released. [Italics in the original, underlining added.]

[48] In my view, it is not the law that an ex parte Order, made some time in the past, can be revisited in inter partes proceedings, whenever there is a change in the law. This would introduce great uncertainty into criminal proceedings and would mean that the authorities could not rely on court orders that were entirely lawful at the time they were made and that had not been appealed. Accordingly, the decision in Spencer has no impact on these MLACMA proceedings.

[49] Even if I am wrong, and Viscomi was somehow entitled to the retroactive benefit of R. v. Spencer, supra, it is hard to see how this could lead to any remedy in his favour in the MLACMA proceedings. The Court in Spencer admitted the evidence, pursuant to s. 24(2) of the Charter, as the police reasonably believed that the law did not require a warrant, at the relevant time, in order to obtain subscriber information. The same is true in Viscomi’s case, indeed, the police were entitled to rely on R. v. Ward, supra in Ontario. In this regard, it has been held that MLACMA searches which violate the Charter should not lead to automatic refusal of a request for assistance. Rather, the MLACMA judge should look for any “significant or meaningful” violations and should apply reasoning that is analogous to s. 24(2) of the Charter. I am, therefore, satisfied that the decision in Spencer could not have helped Viscomi in the MLACMA proceedings. See: R. v. Budd, supra; U.S.A. v. Price (2007), 2007 ONCA 526, 225 C.C.C. (3d) 307 at paras.17-26 (Ont. C.A.)

[50] I would not have given notice or granted standing to Viscomi based on the third area of alleged non-disclosure. In fact, there was no non-disclosure concerning the warrantless and voluntary production of the Zing Networks subscriber information to the U.S. police. In my view, that means of voluntary production was entirely lawful at the time.

(v) The fourth area of alleged non-disclosure: the O.P.P.’s legal authority for ongoing detention of the seized materials

[51] The last area of alleged non-disclosure evolved somewhat in the course of the Application to Re-Open. It was initially alleged that the O.P.P. authority to detain the Ontario seizures expired on August 10, 2012, when the Newmarket charges were withdrawn. The s. 490 detention order obtained by the police, after execution of the two s. 487 search warrants in March 2012, continued only until “the completion of all proceedings”. The Crown advised Viscomi’s counsel, once the present Application to Re-Open was launched, that the O.P.P. in fact had obtained a fresh s. 487 search warrant in Newmarket on August 10, 2012 and had re-seized the fruits of the original search warrant in furtherance of an ongoing Ontario investigation. The O.P.P. forensic analysis of the seized materials was not yet complete and “further victims” might yet emerge from the ongoing analysis, according to the new search warrant Information. A fresh ninety day s. 490 detention order was also obtained on September 5, 2012. Accordingly, the O.P.P. still had lawful authority under the Criminal Code to detain the seized items at the time when the MLACMA Gathering Order was obtained ex parte on November 6, 2012.

[52] As a result of learning the above facts, Viscomi’s counsel obtained the fresh s. 487 search warrant Information and s. 490 Report to a Justice from the Ontario Court of Justice at Newmarket. This led to a change in the argument concerning this fourth and last area of alleged non-disclosure. The original argument had been that “there was no authority for the O.P.P. to continue to detain the items” seized by search warrant, as counsel put it in their Factum, and that this complete lack of authority was not disclosed to me in the ex parte materials. On the inter partes hearing, once the full record was obtained, it was conceded that there were Criminal Code Orders obtained from the Ontario Court of Justice, allowing the O.P.P. to continue to detain the seized items. However, it was submitted that there were misstatements in the materials put before the Justice of the Peace in Newmarket, in order to obtain these fresh Court Orders and that I should permit cross-examination of the Affiant on these misstatements. I declined the Application for leave to cross-examine the Affiant.

[53] In my view, there was no false or misleading information in the ex parte MLACMA materials filed before me, concerning the issue of lawful authority to detain the seized items. The Affiant attached and adopted the U.S. Request for Assistance under MLACMA in which the U.S. authorities stated that their request was “urgent”. They gave two reasons for the urgency, as follows:

The prosecutor requests that this request be executed on an urgent basis. Viscomi was arrested on August 9, 2012, based on a request for extradition submitted by the U.S. As a result of this arrest, Viscomi’s Canadian charges will be “stayed” and there may be no basis for Canadian law enforcement authorities to maintain possession of the items seized during the search warrant. Further, now that the extradition process has begun, time is of the essence, and the prosecutor will need to begin forensic analysis of the items seized as quickly as possible. [Emphasis added.]

[54] The above request was prepared at a time when the Newmarket charges had apparently not yet been withdrawn but when it was anticipated that they “will” be “stayed”. The request was then signed in Washington D.C. on August 10, the same day that the charges were withdrawn in Newmarket. Similarly, the ninety day s. 490 Order, eventually obtained on September 5, 2012, had not yet been obtained and it was anticipated that there “may” be no lawful basis for the continued detention of the seized items. The fact that a ninety day s. 490 Order was eventually obtained did not detract from the U.S. prosecutors’ assertion that there was an “urgent” need to obtain MLACMA assistance. It was only a short period of ongoing lawful detention under the Criminal Code, that the O.P.P. were eventually allowed, and the need to “begin forensic analysis” as soon as possible was obvious, should the extradition process move quickly and should Viscomi remain in custody and assert “speedy trial” rights in the U.S.

[55] Given the above record, I am not satisfied that the failure to advise me of the fresh s. 487 search warrant and the fresh s. 490 detention order had any material impact on the MLACMA proceedings. Mr. Wilkinson candidly conceded that this last area of alleged non-disclosure was not sufficiently serious, on the existing record, to deny the MLACMA Orders requested by the U.S. authorities. I agree with this concession. It has been held, in this regard, that “minor or trivial” defects in search and seizure procedure should not lead to a refusal of assistance under MLACMA and that an analogous approach to s. 24(2) Charter analysis ought to be adopted. See: R. v. Budd, supra; U.S.A. v. Price, supra.

[56] In my view, the real thrust of this fourth and last area of alleged non-disclosure involved an attack on the completeness and accuracy of the materials placed before the Ontario Court of Justice in Newmarket when the O.P.P. obtained the fresh s. 487 search warrant and s. 490 detention order. That issue, of course, would involve a collateral attack on the Ontario Court of Justice Orders. It is an issue that is simply not before me on the present Application to Re-Open the MLACMA proceedings.

D. CONCLUSION

[57] For all the above reasons, I am not satisfied that there was any material non-disclosure in the ex parte MLACMA proceedings that were before me in November 2012 and March 2013. Accordingly, the Application to Re-Open those proceedings and re-consider the Gathering and Sending Orders is dismissed.

M.A. Code J.

Released: September 11, 2014

COURT FILE NO.: 14-90000122-00MO

DATE: 20140911

ONTARIO

SUPERIOR COURT OF JUSTICE

MARCO VISCOMI

– and –

ATTORNEY GENERAL FOR ONTARIO and ATTORNEY GENERAL OF CANADA

REASONS FOR JUDGMENT

M.A. Code J.

Released: September 11, 2014