R. v. Viscomi 2016 ONSC 1830 Court File No. Ex-130/15 DATE: 20160317

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA (ON BEHALF OF THE UNITED STATES OF AMERICA)

– and –

MARCO VISCOMI

Nancy Dennison and Monika Rahman for the Attorney General of Canada, Respondent

Julianna Greenspan and Brad Greenshields for Marco Viscomi, Applicant

HEARD: February 4, 5 & 16, 2016

RULING: March 17, 2016

J.D. McCOMBS J.

RULING ON DISCLOSURE APPLICATION

PENDING EXTRADITION PROCEEDINGS

I. OVERVIEW

(a) The Allegations

1. The Attorney General of Canada (“the AGC” or “the Crown”) seeks an Order committing Marco Viscomi for extradition to the United States, pursuant to s. 29(1) of the Extradition Act[1]. Mr. Viscomi faces an indictment in the State of Virginia charging him with sexual coercion of a minor and transporting visual depictions of sexually explicit conduct involving a minor by means of a computer. The victims, 17 year-old and 13 year-old sisters, were in their home in Virginia Beach on January 5-6, 2012 when the offences occurred. Mr. Viscomi is alleged to have been in Ontario and using the Skype screen name “Jamie Paisley” as an alias. There is no dispute that the offences occurred; the real issue is whether it can be established that Mr. Viscomi is the person who was posing as “Jamie Paisley”.

(b) The First Extradition Application and the Successful Appeal

2. This is the AGC’s second application for extradition. The first application proceeded without reliance on the fruits of any evidence obtained by the Canadian authorities in Canada. That application was successful, but the Court of Appeal allowed Mr. Viscomi’s appeal from the committal order and set it aside, holding that the information contained in the Record of the Case for Prosecution (“ROC”) was insufficient to support a committal.

(c) The Second Extradition Application Currently Before the Court

3. In light of the ruling of the Court of Appeal, the AGC has applied once again for an extradition order, this time relying on a significantly expanded ROC that refers to an abundance of information obtained by the Canadian authorities.

(d) The Current Application: For Disclosure Preliminary to the Extradition Hearing

4. In this application, Mr. Viscomi seeks disclosure of contemporaneous notes and investigative reports of a number of officers involved in the Canadian investigation. He also has signaled that once he is armed with the additional disclosure, he will seek a further order permitting cross-examination of the police officer who prepared the ITOs for the three search warrants that were issued and executed.

5. Mr. Viscomi seeks the additional disclosure in order to challenge the issuance of the search warrants and also to challenge the manner in which the search warrants were executed, how the seized evidence was dealt with, and the manner in which the forensic testing was conducted. Mr. Viscomi points to s. 32(2) of the Extradition Act, which provides that “evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted” at an extradition hearing. He points out that this requirement mandates consideration of his Charter rights, and submits that he is thereby entitled to further disclosure of information related to the manner in which the evidence was obtained, because compliance with Canadian rules of evidence requires that his Charter rights be respected.

(e) Conclusion Denying This Application for Further Disclosure

6. In these reasons, I conclude that Mr. Viscomi has already been provided with more-than-adequate disclosure to permit him to challenge the admissibility of the Canadian-derived evidence based on issues properly raised at this committal stage of the extradition process. I am satisfied that there is no realistic possibility that further disclosure could affect the outcome of the extradition application. The application for additional disclosure is dismissed.

II. BACKGROUND: THE COMPLEX PROCEDURAL HISTORY

7. This case has a long and complex procedural history. Both sides agree that the procedural history is important in order to place this application into its proper context. In my view, the reasons for my conclusion that further disclosure should be refused cannot be clearly understood without setting out at least the most significant aspects of the procedural history. I turn to that history now.

8. The offences were committed on the night of January 5 and 6, 2012. While the offences were in progress, an older sibling entered the room and found her young sisters, naked and very upset. She alerted her father who called the police. The victims’ parents turned over the children’s computer to the Virginia police. It contained a complete record of the criminal misconduct over the internet, through chat rooms and over Skype.

9. At the request of U.S. authorities, the Canadian Internet Service Provider (ISP) voluntarily provided the Internet Protocol (“IP”) address in Ontario. The IP address was assigned to Marco Viscomi, the applicant, at his specific home address in Stouffville, Ontario.

10. On March 21, 2012, Canadian investigators obtained and executed a search warrant at Mr. Viscomi’s family home in Stouffville. Upon learning that he was away as part of his medical studies, a second search warrant was obtained and executed the same day at his address in Chatham-Kent. In all, three laptop computers and external hard drives were seized. An initial forensic examination led to Canadian charges of child luring (two counts), extortion, and uttering threats. Mr. Viscomi surrendered the next day and was released on a recognizance shortly afterwards.

11. The criminal charges were before the Ontario Court of Justice in Newmarket, Ontario. Over the next several months, the defence received some disclosure, but more was requested and anticipated by the defence to be provided prior to a scheduled August 10, 2012 judicial pre-trial hearing.

12. On August 9, 2012, the day before the scheduled pre-trial hearing, Mr. Viscomi was arrested on an extradition warrant. On August 10, 2012, the Canadian charges were withdrawn, with Crown counsel stating in court that the withdrawal was due to the commencement of extradition proceedings and that the charges would be reinstated if the extradition proceedings were to fail.

13. As noted earlier, the extradition proceedings were commenced based upon an ROC containing only information gathered by the U.S. authorities.

14. On August 16, 2012, Benotto J.[2] denied Mr. Viscomi’s bail application and set the extradition hearing for November 1, 2012.

15. When Mr. Viscomi’s requests for disclosure were declined by the Crown agents of the AGC, he brought an application for disclosure relating to the domestic searches, returnable on November 1, 2012, the extradition hearing date. The AGC brought an application to have the disclosure application dismissed as frivolous and vexatious. The AGC’s application was granted by McWatt J. on October 11, 2012, and Mr. Viscomi’s disclosure application was dismissed.[3]

16. The November 1, 2012 extradition hearing date was adjourned on application by Mr. Viscomi and eventually proceeded on April 11 & 12, 2013.

17. In the meantime, the A.G. Ontario applied ex parte for Gathering and Sending Orders pursuant to s. 17(2) of the Mutual Legal Assistance in Criminal Matters Act (“MLACMA”). Code J. granted two Gathering Orders on November 6, 2013, and two Sending Orders on March 12, 2013.

18. The extradition hearing proceeded on April 11 & 12, 2013. The hearing was based on the ROC prepared on August 7, 2012 that relied only on evidence obtained by the American authorities. The evidence derived pursuant to search warrants in Canada was not relied upon at the hearing. On May 24, 2013, Campbell J. ordered Mr. Viscomi committed for extradition. [4]

19. On October 17, 2013, the Minister of Justice ordered Mr. Viscomi’s surrender. In the Minister’s letter of the same date, addressed to Mr. Viscomi’s lawyer, the Minister referred to the MLACMA orders and stated that the Canadian-gathered evidence had already been sent to the United States.

20. On November 18, 2013, Mr. Viscomi filed an application for judicial review of the Minister’s surrender decision.

21. In January 2014, Mr. Viscomi retained new counsel. Counsel learned that a Summary of the Case prepared for the Minister of Justice dated September 4, 2013 had indicated that the computer evidence obtained through the Canadian investigation had been sent to the United States under MLACMA. As noted above, the Minister’s October 17, 2013 letter advising of his decision to order Mr. Viscomi’s surrender, had made reference to the MLACMA orders and informed Mr. Viscomi that the materials had been sent to the United States.

22. On May 12, 2014, counsel for Mr. Viscomi wrote to the Minister requesting re-consideration of his surrender decision, in part because of pending applications to the MLACMA judge, Code J., to re-open the MLACMA proceedings and, in a separate application, to challenge the constitutionality of the MLACMA provisions.

23. On May 23, 2014, Mr. Viscomi brought an application to re-open the ex parte MLACMA proceedings (Wilson application[5]). He also filed an application challenging the constitutionality of certain provisions of the MLACMA and seeking remedies under s. 24(1) of the Charter and s. 52 of the Constitution Act, 1982.

24. The Wilson application was heard by Code J. on September 2, 2014 and dismissed on September 11, 2014.[6] Notably, among his reasons for concluding that the MLACMA proceedings should not be re-opened, he said that there was no air of reality to the suggestion that the search warrants were unlawful. He observed, at para. 29, that counsel for Mr. Viscomi had full disclosure of the two Ontario search warrant informations (“ITOs”) and that they had been filed before him at the inter partes review (Wilson application). He described the ITOs as:

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.

25. Code J. also concluded that there had been no false or misleading information in the ex parte materials filed concerning the issue of lawful authority to detain the seized items.

26. On October 16, 2014, Mr. Viscomi’s application for leave to appeal Code J.’s Wilson ruling was dismissed by Strathy C.J.O on jurisdictional grounds.[7]

27. On November 12, 2014, the Minister of Justice provided his final decision on re-consideration, upholding his October 17, 2013 surrender order. By this time, Mr. Viscomi’s application to re-open the MLACMA proceedings had been dismissed by Code J. Mr. Viscomi’s challenge to the constitutionality of the MLACMA provisions was still pending before Code J.

28. Mr. Viscomi’s application for bail pending appeal was dismissed by Laskin J.A. on December 5, 2014.[8]

29. The constitutional challenge to MLACMA was dismissed by Code J. on January 9, 2015.[9]

30. Appeals from Campbell J.’s committal order, McWatt J.’s dismissal of the disclosure application, Code J.’s dismissal of Viscomi’s constitutional challenge, and an application for judicial review of the Minister’s surrender order, were heard together by the Ontario Court of Appeal on June 8 & 9, 2015.

31. The Court of Appeal’s decision was released on June 30, 2015. Blair J.A., writing for the Court, upheld Code J.’s dismissal of the constitutional challenge, and dismissed the appeal from the order of McWatt J., but allowed the appeal of the committal order of Campbell J. Consequently, the Minister’s decision to order Mr. Viscomi’s surrender was also set aside.[10]

32. The basis for the Court’s conclusion that the committal order could not stand was that the ROC before Campbell J. contained insufficient information to permit the inference that Mr. Viscomi was the user of the IP address at the relevant time.

33. The Court of Appeal foresaw the likelihood of the Crown re-instituting further extradition proceedings. In addressing this likelihood, Blair J.A. stated, at para. 43, that “there is one issue raised in both the committal and surrender proceedings that warrants comment, in the event the matter should be pursued further”.

34. Blair J.A. then addressed the implications of the decision of the Supreme Court of Canada in R. v. Spencer[11], in which the Court held that prior judicial authorization was necessary in order to obtain subscriber ISP information. Blair J.A. pointed out that when the ISP information for Mr. Viscomi was obtained, the law was that no warrant was required. Blair J.A. pointed out that in Spencer, the Court declined to exclude the evidence under s. 24(2). Blair J.A. concluded his discussion of this issue by saying, at para. 46: “I see no material difference between the circumstances in Spencer and those existing here and do not see any basis involving the warrantless ISP ‘search’ that would lead to a different result.”

35. Moreover, at paras. 47 – 49, Blair J.A. explained that in any event, because the ISP information had been obtained by American authorities, it is immune from constitutional scrutiny.

III. THE SECOND EXTRADITION APPLICATION—NOW BEFORE THIS COURT

36. Mr. Viscomi was arrested in custody simultaneously with the release of the Court of Appeal’s judgment quashing the committal order and the Minister’s surrender order. On July 28, 2015, Mr. Viscomi was served with a new Record of the Case dated July 24, 2015 (the “2015 ROC”).

a) The 2015 ROC Incorporating the Canadian-Derived Evidence

37. The detailed 2015 ROC begins by explaining how the crimes first came to light when the older sister of the two victims entered their bedroom and found them naked and very upset in front of their laptop computer. The 2015 ROC indicates that the older sister alerted her father; that police were called; that police were given printouts of the chat sessions; and the laptop itself was turned over to Virginia Beach police. The 2015 ROC refers to the victims as Jane Doe 1 and Jane Doe 2. The older sister is identified as Jane Doe 3.

38. The 2015 ROC describes in detail the American-derived forensic evidence retrieved from the computer that was turned over to the police by the victims’ father in Virginia.

39. The 2015 ROC also incorporates the Canadian-derived evidence seized pursuant to search warrants issued on March 12, 2012, from the residences associated with Mr. Viscomi in Stouffville, Ontario and Chatham-Kent, Ontario.[12]

40. The 2015 ROC confirms that, pursuant to Code J.’s March 12, 2013 sending order[13], U.S. authorities received a Dell laptop computer and a Western Digital external hard drive, seized during the search at the Chatham-Kent residence. The 2015 ROC describes this material as “the electronic media”.[14]

41. The 2015 ROC, at paras 16-17, states that when the U.S. authorities received the electronic media (i.e. the seized computer and external hard drive from Marco Viscomi’s Chatham-Kent residence), a search warrant was obtained and forensic examination was conducted.

42. The 2015 ROC states that the external hard drive, backup files from a computer named MARCO-PC were retrieved, including:

(i) Six thumbnail images of Jane Doe 1 and Jane Doe 2. In three of the images either or both Jane Doe 1 and Jane Doe 2 are topless exposing their breasts facing the camera just as “Jamie Paisley” had instructed them to do during the skype chat.

(ii) Personal papers including Mr. Viscomi’s Australian driver’s licence with his photo, a school enrollment letter for James Cook University for Mr. Viscomi and a medical indemnity card in Mr. Viscomi’s name.

(iii) Numerous images of Mr. Viscomi in front of a webcam.[15]

(iv) Numerous sexually explicit images of apparently very young girls, including 1) a female appearing to be between 14-16 years old lying naked on a bed facing a webcam, covering her breasts with her arms and apparently crying. Her vagina is exposed to the webcam; 2) an apparently 12-14 year old girl sitting on a couch exposing her breasts; 3) a 13-15 year old female sitting naked on the bathroom floor exposing her breasts and vagina; 4) a 14-16 year old female sitting naked on the bathroom floor exposing her breast and masturbating.[16]

(v) Numerous chat logs between Skype usernames “jimbos939”, “jimbos9393”, “jimbos97531”, “jimbos975311”, “jimbos9753111”, “johnny.wright84222” and numerous girls. No chat logs were located for “jimbos939393”.[17] These chat logs contained similar threats to the girls and demands for sexual acts that Jane Doe 1 received from Paisley. These chats include similar topics and threats:

1. Explanation of an IP address

2. Sending a file alleging it was a Trojan virus that could be activated remotely

3. Taking pictures as insurance.

4. Use of props such as a brush and other items to have the girls insert into their vagina and their sisters’ vagina

5. Use of a sister in the chat sessions

6. Counting down until they performed as instructed or their pictures would be posted

7. Instructing them to gag and keep gagging until they “puke”.[18]

(vi) The following email addresses:“makemyday939@hotmail.com”, “makemyday1353@hotmail.com”, “makemyday6666@hotmail.com”, “makemyday6@hotmail.com”, “makemyday66@hotmail.com”, “makemyday664@hotmai.lcom”, “makemyday668@hotmail.com” and “makemyday13535@hotmail.com”.

The email address “makemyday393@hotmail.com” is the email address associated with the Skype account used to commit the offence.[19]

43. The 2015 ROC states that the Dell laptop was forensically examined revealing the following:

(i) Numerous sexually explicit images of what appear to be minor girls.

(ii) Chat logs between Skype usernames “johnny.wright84111” and numerous girls. The chats contained similar threats to the girls, as outlined above.

(iii) Other images of child pornography that appear to come from a source other than a webcam.[20]

(iv) Videos of Mr. Viscomi and an adult woman who appears to be his girlfriend.

(v) Numerous images of Mr. Viscomi in front of a webcam and a copy of his passport.

(vi) The computer did not contain any indication of other users besides Mr. Viscomi.

(vii) Communications using the Skype user name “canuck down under” which was used to communicate with family and friends in a non-exploitive manner.

(viii) Internet history which included visits to “tinychat” and other similar social network websites such as “Stickam” and “Oovoo”. When in “tinychat” the following chatrooms were visited “teenagerland” “teenzone” “flirtland” “teenpartynight”.[21]

(ix) References to “jimbos939393”: 1) in part of a chat discussing IP addresses, 2) in a file called pagfile.sys, 3) in a backup folder located at “USERS/MARCO/ APPDATA/ROAMING/APPLECOMPUTER/MOBILESYNC/BACKUP where backups for Apple mobile devices such as iphones are stored.[22]

44. As previously mentioned, the original extradition order issued by Campbell J. was quashed by the Court of Appeal because the court concluded that the 2012 ROC contained insufficient information to permit the inference that Mr. Viscomi was the user of the IP address at the relevant time.[23]

45. The 2015 ROC before the court in this re-instituted extradition application does not suffer from this shortcoming. It can readily be seen that the inclusion of the Canadian-derived evidence in the 2015 ROC, if it is admissible evidence, wholly removes the concern that led to the prior extradition order being quashed by the Ontario Court of Appeal.

46. The references in the 2015 ROC concerning the forensic evidence retrieved from the computer and external hard drive from Mr. Viscomi’s residence in Chatham-Kent strongly support the claim that the electronic media belonged to him and that he was the one who used it to commit these crimes.

47. In this re-instituted extradition application, the issue will come down to whether committal should be refused because the evidence gathered in Canada does not, in the words of s. 32(2) of the Extradition Act, “satisfy the rules of evidence under Canadian law in order to be admitted”. Determination of this issue will involve consideration of whether Mr. Viscomi’s Charter rights have been violated by the manner in which the evidence was obtained, such that the evidence should be excluded under s. 24(2) of the Charter.

48. Because the application before me is for further disclosure prior to commencement of the committal hearing, it is appropriate to outline the material that is already in the hands of Mr. Viscomi.

b) Disclosure Already in the Hands of the Applicant

49. The material presently available to Mr. Viscomi is extensive. The following is a list of some of the most salient items:

• ITO of DC Wohlert dated March 21, 2012 sworn in support of application for search warrant re: Mr. Viscomi’s family home in Stouffville;

• ITO of DC Wohlert dated March 21, 2012 sworn in support of subsequent application for search warrant re: Mr. Viscomi’s residence in Chatham-Kent;

• March 22, 2012 “General Occurrence” report prepared by Detective Jason Belanger. He conducted a “forensic preview” on March 21, 2012, of the Dell laptop seized from Mr. Viscomi’s residence in Chatham-Kent that same day. His 25-page report details the steps taken, and a brief summary of the incriminating information retrieved;

• April 18, 2012 Report to a Justice under s. 489.1 of the Criminal Code;

• Photocopy of DC Wohlert’s memo book notes dated March 21, 2012;

• Investigator Statement Report (“Will State”) of Darryl Hawke, (civilian member of OPP Electronic Crime Unit) outlining steps taken to retrieve and store data from hard drive removed from Dell laptop seized at Viscomi’s residence in Chatham-Kent and brief indication of the type of data that was retrieved;

• DC Wohlert’s August 10, 2012 ITO sworn in support of application for search warrant re: OPP property vault;

• Transcript of August 15, 2012 testimony of Darryl Hawke before Benotto J. at bail hearing in which Mr. Hawke describes what was recovered from the seized laptop;

• Letter of request for MLAT assistance, dated August 10, 2012 setting out information relied upon by U.S. authorities and the basis for urgent request for assistance;

• September 5, 2012 Report to a Justice under s. 489.1 of the Criminal Code;

• October 11, 2012 ITO of DC Wohlert (approximately 40 pages) sworn in support of ex parte MLACMA gathering order;

• Gathering Orders (November 6, 2012) re: OPP property vault & Zing Networks Inc.;

• Report to a Justice, pursuant to s.19 MLACMA confirming that the Gathering Orders had been complied with; and,

• Sending Order under MLACMA dated March 12, 2013.

IV. THE ISSUES RAISED IN THIS DISCLOSURE APPLICATION

50. Mr. Viscomi raises several issues in relation to his application for further disclosure of officers’ notes. I will identify them and then deal with each of them in turn.

a) The air of reality test does not apply to this case

b) Disclosure is necessary in order to:

i. challenge the manner of execution of the March 21, 2012 search warrants.

ii. challenge the August 10, 2012 Search Warrant and the related September 5, 2012 90-day detention order.

iii. challenge the lawful basis for the issuance of the 2012 search warrants.

V. DISCUSSION OF ISSUES RAISED

a) Must the Applicant Demonstrate an “Air of Reality” to Support his Disclosure Application?

51. The starting point for discussion is to determine what preconditions must be met before the court may order disclosure at this extradition committal hearing.

52. The outcome of this committal hearing will ultimately depend upon a determination of whether the Canadian-gathered evidence “satisfies the rules of evidence under Canadian law in order to be admitted”. [24]

53. Ms. Greenspan emphasizes that the Canadian-gathered evidence is now in the hands of the American authorities pursuant to Code J.’s MLACMA sending order and all other remedies have been exhausted.[25] She points out that this is Mr. Viscomi’s only remaining opportunity to challenge the admissibility of the Canadian-gathered evidence.

54. Ms. Greenspan submits that the well-known “air of reality” test does not apply in the circumstances of this case. She submits that the appellate authorities applying the air of reality test for disclosure in extradition proceedings are distinguishable on their facts.

55. She submits that the line of appellate authority dealing with this issue generally involves allegations of bad faith or official misconduct relating to the integrity of the extradition process, as opposed to the admissibility of Canadian-gathered evidence in the ROC. Ms. Greenspan submits that different considerations apply when the disclosure is sought to meaningfully challenge the admissibility of the very evidence relied on in the ROC to support committal for extradition.

56. Ms. Dennison, on behalf of the AGC, points out that the air of reality test has been consistently applied to disclosure requests relating to Canadian-gathered evidence contained in the ROC, including in cases of alleged Charter breaches. In an appendix to the AGC’s factum, the Crown lists cases from across Canada in which the air of reality test has been applied. I have not been made aware of any case in which the air of reality test has been rejected.

57. I am not persuaded that the “air of reality” test should be jettisoned when the issue is the admissibility of Canadian-gathered evidence. Stinchcombe-like disclosure is not desirable, let alone required, on an extradition hearing.[26] Extradition proceedings are meant to be an expeditious process designed to ensure that Canada honour its treaty obligations.

58. Nevertheless, when tasked with evaluating the admissibility of Canadian-gathered evidence, the court cannot simply pay lip service to Charter compliance. There must be a meaningful scrutiny of the Canadian-gathered evidence, including consideration of the potential remedy of exclusion under s. 24(2) where the evidence is shown to have been obtained in a manner that infringed or denied Charter rights.[27]

59. The court may order the production of materials relevant to the issues “properly raised” at the committal stage of the process.[28] The issue of admissibility of the Canadian-gathered evidence is obviously properly raised in this case. Indeed, the admissibility issue is central to the extradition proceedings.

60. As a matter of fundamental fairness, the person sought for extradition must have sufficient disclosure to allow for the meaningful scrutiny mandated by the Extradition Act as interpreted and applied in the appellate authorities.

61. I recognize that I have a responsibility to examine the material presently available to Mr. Viscomi and determine whether it provides a sufficient basis to permit him to mount a meaningful challenge to the admissibility of the evidence. The extradition hearing must be conducted in accordance with the principles of fundamental justice guaranteed under s. 7 of the Charter, but this does not entitle him to the highest possible level of disclosure.[29]

62. The challenge is to carefully balance the rights of Mr. Viscomi, the person sought for extradition, with the court’s gatekeeper responsibility to ensure that the extradition process does not cripple the operation of the extradition proceedings.[30] This careful balancing must respect the rights of the individual without losing sight of the importance of honouring Canada’s international treaty obligations.[31]

63. The onus of establishing a Charter breach rests with Mr. Viscomi.[32] The evidentiary basis for a claim of Charter breach may be found in the ROC, supplemented by the material already in his possession. Although Mr. Viscomi is entitled to present his own evidence in support of his application for further disclosure[33], he has not done so.

64. I conclude that the air of reality test applies to the issue of whether further disclosure should be ordered.

65. In evaluating whether further disclosure in addition to that already in the hands of Mr. Viscomi, I am mindful of the three criteria set out by Doherty J.A. in R. v. Larosa, 2002 CanLII 45027 (ON CA), [2002] O.J. No. 3219 (C.A.), 166 C.C.C. (3d) 449, at para. 76 and summarized by Benotto J.A. in Mathurin 2015 ONCA 581, [2015] O.J. No. 4487; 328 C.C.C. (3d) 85 at para. 22:

▪ the allegations of Charter-infringing misconduct must be capable of supporting the remedy sought;

▪ there must be an air of reality to the allegations; and,

▪ it must be likely that the disclosure would be relevant to the allegations.

66. Those criteria are instructive, but are applicable at the appellate level. At this level the criteria for disclosure should, in my view, be somewhat less stringent than the Larosa criteria. While I have a gatekeeper function, I also have a duty to ensure that Mr. Viscomi is dealt with fairly by ensuring that he has enough ammunition to meaningfully advance his arguments.

67. I turn now to the merits of the disclosure application in relation to the issues raised by Mr. Viscomi.

68. I emphasize that at this stage, I am not directly concerned with the merits of any allegations of Charter breaches. Rather, I am focused on whether further disclosure is required in order that Mr. Viscomi’s right to a fair determination of the committal hearing issues is protected.

b) Is Further Disclosure Necessary?

i. Challenging the Manner of Execution of the March 21, 2012 Search Warrants

69. This submission involves s. 8 of the Charter, which provides that every person is entitled to be free from unreasonable search or seizure. The seminal case of R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 23 established that to be reasonable, a search or seizure must be authorized by law that is itself reasonable, and the manner in which the search was carried out must also be reasonable.

70. Mr. Viscomi intends to challenge the manner in which the searches and seizures were carried out. His position is that in order to do so, he must be given sufficient disclosure to allow him to make meaningful submissions.

71. Ms. Greenspan submits that the information in the 2015 ROC is “wholly insufficient to meaningfully scrutinize Charter-compliance”, and moreover is “materially misleading” in its omission of the forensic searches carried out in Canada.

72. In addition to material already in the hands of the defence, Mr. Viscomi seeks further disclosure of contemporaneous notes and investigative reports of all officers involved in the execution of the March 12, 2012 search warrant at the address in Chatham-Kent.

73. I have carefully considered Ms. Greenspan’s submissions and have examined the material already in the hands of the defence. In my opinion, Mr. Viscomi has more-than-adequate disclosure to allow him to advance his claim that his Charter rights were violated by the manner in which the search warrants were executed. I am satisfied that further disclosure will serve only to protract the proceedings and there is no air of reality to the assertion that further disclosure will assist Mr. Viscomi.

ii. Challenging the August 10, 2012 Search Warrant and the Related September 5, 2012 90-day Detention Order.

74. As noted earlier, DC Wohlert of the Chatham-Kent Police was the affiant for each of the ITOs, including the ITO prepared in support of the August 10, 2012 search warrant.

75. Mr. Viscomi asserts that the August 10, 2012 ITO constituted a failure by DC Wohlert in his duty of candour and utmost good faith, because it contained material misrepresentations and misleading omissions for the purpose of leaving the issuing justice with the false impression that continued detention of the evidence was necessary for ongoing domestic proceedings, when the real intent was to get legal authority to hold the property so that ex parte MLACMA orders could be obtained.

76. Mr. Viscomi seeks disclosure of information related to DC Wohlert’s knowledge of the events leading to the withdrawal of the Canadian charges and the decision to seek the August 10, 2012 search warrant. Specifically, Mr. Viscomi seeks DC Wohlert’s “contemporaneous memo notes from March 7, 2012 to August 10, 2012, and any related correspondence or investigative reports from that time period”. He also reserves the right to seek leave to cross-examine DC Wohlert.

77. Mr. Viscomi also asserts that the “delay” of 3.5 weeks in filing a “Report to a Justice” in Form 5.2 constituted non-compliance with the “as soon as practicable” requirement contained in s. 489.1(1), thereby providing a basis for disclosure of the circumstances and cause of the alleged non-compliance with s. 489.1(1) of the Criminal Code.

78. Once again, I decline to order the sought-after disclosure. I am firmly of the view that Mr. Viscomi already has more-than-adequate disclosure to allow him to fairly advance his Charter claims concerning the August 10, 2012 ITO and the alleged non-compliance with s.489.1(1). There is no air of reality to the assertion that further disclosure is needed to ensure fairness to Mr. Viscomi. In my view, disclosure of DC Wohlert’s contemporaneous memo notes from March 7, 2012 to August 10, 2012, would serve no purpose other than to unduly protract the proceedings.

iii. Challenging the Basis for the Issuance of the 2012 Search Warrants

79. Ms. Greenspan submits that the ITOs used to obtain the 2012 search warrants do not provide a basis for their issuance. She submits that the reasoning applied by the Court of Appeal in quashing Mr. Viscomi’s original committal order[34] is equally applicable to the issue of the issuance of the search warrants on the basis of the same ITOs.

80. The Crown submits that there is no merit to this argument because different considerations apply to the issuance of a search warrant than to a decision to commit a fugitive for extradition.

81. At this stage, I am dealing with the application for disclosure and need not determine the merits of the issue raised. However, I am satisfied that there is no air of reality to the claim that further disclosure would advance Mr. Viscomi’s claim that the search warrants must fall on this basis.

VI. CONCLUSION

82. For the foregoing reasons, the application for disclosure is dismissed.

J. D. McCombs J.

RELEASED: March 17, 2016

[1] S.C. 1989, c. 18.

[2] As she then was. Justice Benotto was appointed to the Court of Appeal for Ontario in November, 2013.

[3] U.S.A. v. Viscomi [2012] O.J. No. 4979.

[4] U.S.A. v. Viscomi 2013 ONSC 2829, [2013] O.J. No. 2435, 115 O.R. (3d) 606.

[5] See R. v. Wilson, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, [1983] S.C.J. No. 88, 9 C.C.C. (3d) 97.

[6] U.S.A. v. Viscomi 2014 ONSC 5262, [2014] O.J. No. 4254, 326 C.C.C. (3d) 160.

[7] Viscomi v. Ontario (Attorney General) 2014 ONCA 765, [2014] O.J. No. 5175; 2014 ONCA 765.

[8] 2014 ONCA 879, [2014] O.J. No. 5820, 315 C.C.C. (3d) 530 (C.A.[in Chambers]).

[9] Viscomi v. A.G. Ontario et al. (2015) 2015 ONSC 61, 123 O.R. (3d) 733.

[10] R. v. Viscomi 2015 ONCA 484, [2015] O.J. No. 3448, 126 O.R. (3d) 427; 325 C.C.C. (3d) 544 (C.A.).

[11] R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212.

[12] Affidavit of Dorota Smolarz, Applicant’s Application Record, Tab 3, para. 5.

[13] See Code J.’s decision in Viscomi, supra footnote 6, at para. 3.

[14] 2015 ROC, page 9, paras 12 & 13 (Applicant’s Applicaton Record, Tab 4).

[15] ROC at para. 18A.

[16] ROC at para. 18C.

[17] ROC at para. 18B.

[18] ROC at para. 18Cii and Exhibit A.

[19] ROC at para. 7.

[20] ROC at para. 19A.

[21] ROC at para. 19B.

[22] ROC at paras. 19C, 19D and 19E.

[23] Viscomi, supra, note 10, per Blair J.A. at paras. 17, 18, & 36.

[24] S. 32(2) of the Extradition Act, S.C. 1999, c. 18 provides:

“Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.”

[25] As noted earlier, Mr. Viscomi’s Wilson application to re-visit the MLACMA gathering and sending orders was dismissed by Code J., and leave to appeal to the Court of Appeal was denied. The constitutional challenge to certain MLACMA provisions was dismissed by the Court of Appeal and leave to appeal to the Supreme Court of Canada was denied.

[26] United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 (S.C.C.), per: Arbour J. at paras. 97 – 100; United States v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462 (S.C.C.) per: Cory & Iacobucci JJ at paras. 128-131.

[27] United States of America v. Anekwu, 2009 SCC 41, [2009] S.C.J. No. 41 (S.C.C.), per: Charron J. at paras. 21 & 28, Dynar, supra, para. 122-124. See also United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77 (S.C.C.) per: McLachlin C.J. at para. 29.; France v. Diab, 2014 ONCA 374, [2014] O.J. No. 2305 (C.A.), at para. 106.

[28] Kwok, supra, at para. 100.

[29] Dynar, supra, para. 129.

[30] Dynar, para. 122.

[31] M.M. v. United States of America, 2015 SCC 62, [2015] S.C.J. No. 62 (S.C.C.), per: Cromwell J. at paras. 14-16.

[32] Anekwu, supra, para. 29.

[33] Anekwu, para. 29.

[34] R. v. Viscomi, supra, note 10.