ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA (ON BEHALF OF THE UNITED STATES OF AMERICA) – and – MARCO VISCOMI

Counsel: Nancy Dennison and Monika Rahman for the Attorney General of Canada, Respondent Julianna Greenspan and Brad Greenshields for Marco Viscomi, Applicant

Heard: May 26, 27, 30, 2016 Ruling: September 1, 2016

J.D. McCOMBS J.

RULING ON CHARTER APPLICATION FOR AN ORDER EXCLUDING CANADIAN-GATHERED EVIDENCE FROM THE RECORD OF THE CASE FOR EXTRADITION

OVERVIEW

[1] This extradition case involves serious allegations of cross-border internet child sexual exploitation. The offences occurred in January of 2012, more than four and one-half years ago.

[2] The child victims were in their home in Virginia Beach. Marco Viscomi is accused of committing the crimes in Canada while using his laptop computer.

[3] The evidence in the case was gathered by both American and Canadian authorities.

[4] This is the second application for extradition.

[5] The first application relied only on the American-gathered evidence. That application led to a committal order, but that order was quashed by the Ontario Court of Appeal.

[6] The Crown has now brought a second application, this time relying on the Canadian-gathered evidence as well as the American-gathered evidence.

[7] In response to this second extradition application, Viscomi first brought a motion for further disclosure. That motion came before me and has been dismissed.

[8] Viscomi now brings a Charter application for an order declaring that the Canadian-gathered evidence is not admissible under Canadian law. In these reasons, I explain why I have concluded that the Charter application to exclude the evidence must be dismissed.

[9] First, however, I will briefly summarize the complex procedural history of this case. The history has been set out in greater detail in earlier judicial decisions [1] , but for convenience, I will outline the main features before addressing the Charter application for a declaration that the Canadian-gathered evidence is not admissible under Canadian law.

PROCEDURAL HISTORY

a) The Initial Arrest on Domestic Charges

[10] On March 22 of 2012, Viscomi was arrested on Canadian charges relating to the same events that form the basis for this extradition application. He was released on bail that day, on consent. The Ontario charges were outstanding in provincial court for about four and a half months. He received initial disclosure; a pre-trial meeting was held with the Crown; and a judicial pre-trial conference was scheduled for August 10, 2012.

b) Arrest on Extradition Warrant and Withdrawal of Domestic Charges

[11] On August 9, Viscomi was arrested on an extradition warrant. On August 10, the scheduled pre-trial date, the Ontario charges were withdrawn. The Crown advised 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.

[12] On August 16, 2012, Benotto J., as she then was, issued a detention order pending the extradition hearing. Viscomi has remained in custody ever since.

c) The First Extradition Application: Based Only on American-Gathered Evidence

[13] The Crown’s first extradition application was based on a Record of the Case for Prosecution (the “2012 ROC”) that contained only information gathered in the U.S. The Crown’s “U.S. evidence-only” approach effectively took the Canadian-gathered evidence off the table and thus obviated the need for scrutiny of the evidence for Charter compliance [2] .

d) The Unsuccessful Disclosure Application

[14] When Viscomi’s requests for further disclosure were declined by the Crown, he applied for a disclosure order relating to the domestic searches. The Crown’s application to dismiss the disclosure application was granted by McWatt J. on October 11, 2012 [3] .

e) The Ex Parte MLACMA Proceedings: The Gathering and Sending Orders

[15] While the original extradition application was pending, the Crown brought an ex parte application under the Mutual Legal Assistance in Criminal Matters Act (“MLACMA”). The MLACMA application was dealt with by Code J. of this court. Justice Code issued a gathering order on November 6, 2012 and a Sending Order on March 12, 2013.

f) The First Extradition Order and the Justice Minister’s Surrender Order

[16] The first extradition application was granted on May 24, 2013, by K. L. Campbell J. of this court [4] . On October 17, 2013, the Minister of Justice issued a surrender order.

g) The Unsuccessful Application to Re-visit the MLACMA Proceedings

[17] Viscomi next brought an application to re-open the ex parte MLACMA proceedings. The application was dismissed by Code J. on September 11, 2014. [5] An application for leave to appeal that decision was dismissed by Strathy C.J.O. on October 16, 2014 [6] .

h) The Unsuccessful Constitutional Challenge

[18] Viscomi also brought a constitutional challenge to certain provisions of MLACMA. That challenge was heard by Code J. and dismissed on January 9, 2015 [7] .

i) Viscomi’s Appeals Heard Together in the Ontario Court of Appeal

[19] Viscomi filed several appeals with the Ontario Court of Appeal. They were heard together on June 8 & 9, 2015. For convenience of reference, I refer to each of them here:

(i) The appeal from the committal order. (ii) An appeal from an order of McWatt J. dismissing Viscomi’s application for further disclosure. (iii) An application for judicial review of the Minister’s order to surrender decision (iv) An appeal against the January 9, 2015 decision by Code J. dismissing a constitutional challenge to the gathering and sending provisions in the MLACMA regime.

j) The Court of Appeal Decision Quashing the Extradition Order

[20] The Court of Appeal released its decision on June 30, 2015 [8] . The Court allowed the appeal from the committal for extradition order issued by Campbell J. The Court dismissed the appeals from the order of McWatt J., and the constitutional challenge that had been rejected by Code J. [9] In light of its decision to set aside the committal order, the Court found it unnecessary to address the application for judicial review of the Minister’s order to surrender.

[21] In quashing the extradition order, the Court of Appeal applied the Shephard test for committal under the Extradition Act: whether there is some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty [10] .

[22] The court held that on the basis of the U.S.-gathered evidence alone, a reasonable trier of fact, properly instructed, could not convict Viscomi, because the U.S.-gathered evidence alone could not prove his identity as the perpetrator beyond a reasonable doubt. [11]

[23] In allowing the appeal, the court foresaw the likelihood that the Crown would institute further proceedings, “whether on new or the same evidence” [12] , and made some additional comments to which I will refer later in these reasons.

k) Initiation of the Present/Second Extradition Application, Based on an Expanded ROC That Includes the Canadian-Gathered Evidence

[24] When the Court of Appeal released its judgment on June 30, 2015 quashing the committal for extradition order of K.L. Campbell J., Viscomi - who was already in custody on the detention order issued by Benotto J. - was immediately arrested on a new extradition warrant. On July 28, 2015, he was served with a new, expanded ROC (the “2015 ROC”). Unlike the 2012 ROC before K.L. Campbell J., the 2015 ROC relies additionally upon the Canadian-gathered evidence.

l) Implications of Reliance on Canadian-Gathered Evidence: Requirement of Admissibility Under Canadian Law

[25] S. 32(2) of the Extradition Act requires that the Canadian-gathered evidence be admissible in Canada before it may be relied upon in support of an extradition application [13] .

[26] The Supreme Court of Canada has made it clear that this requirement includes consideration of and respect for Charter issues. There must be meaningful scrutiny of the Canadian-gathered evidence, including consideration of the remedy of exclusion under s. 24(2) where the evidence is shown to have been obtained in a manner that infringed Charter rights [14] .

THE PRESENT APPLICATION: CHARTER MOTION TO EXCLUDE CANADIAN-GATHERED EVIDENCE

[27] Mr. Viscomi has brought a Charter application to exclude the Canadian-gathered evidence. The onus is on him to establish any Charter violation and to persuade the court that the evidence is not admissible [15] . The ROC must contain enough information for Mr. Viscomi to know what evidence was obtained in Canada and some information as to how it was obtained [16] . Although he is entitled to present his own evidence in support of his Charter application [17] , he has elected not to do so.

[28] In anticipation of this Charter application, Mr. Viscomi brought a motion for additional disclosure. In my ruling dismissing the application, I held that Mr. Viscomi was entitled to sufficient disclosure to enable him to meaningfully advance his Charter arguments, but that he is not entitled to the same level of disclosure as he would entitled to if this were a trial [18] . I held that before an order for further disclosure should be made, there must be an air of reality to the assertion that further disclosure would advance his Charter claim.

[29] I concluded that Mr. Viscomi is already in possession of more-than-adequate disclosure to advance his claim. I held that the abundance of information contained in the 2015 ROC, the 2012 ROC, and the additional disclosure already provided to him gives him ample material to ensure that he can meaningfully advance his Charter application [19] .

[30] Having now heard full argument on the Charter application, I remain firmly of the view that further disclosure would have unduly protracted these proceedings and would not have advanced Viscomi’s Charter claim.

[31] I turn now to the issues raised on the Charter application.

THE CHARTER APPLICATION

[32] Mr. Viscomi alleges a series of Charter breaches that he says taints the entire evidence-gathering process and requires that the Canadian-gathered evidence be rejected as a result.

[33] Reduced to its essence, the issue before me is whether the evidence should be excluded under s. 24(2) as a result of Charter breaches said to have occurred in the gathering of the Canadian evidence. This is the core issue in the extradition application, because if the Canadian-gathered evidence is admissible under Canadian law, the information contained in the 2015 ROC provides a very compelling basis for granting the extradition order.

THE ISSUES RAISED

[34] Mr. Viscomi raises several Charter issues:

1: The residential searches were not authorized by law. 2: The residential searches were executed contrary to the Charter. 3: The further forensic searches were not authorized by law. 4: The continued detention of the items was contrary to the Charter. (i) Failures to comply with s. 489.1(1) of the Code (ii) Invalidity of the August 10, 2012 “re-seizure” warrant (iii) Breach of the affiant’s duty of utmost candour and good faith 5: The sending of the evidence was contrary to the Charter. 6: The appropriate remedy is an order excluding the evidence and an order directing the AG Canada to diplomatically request the return of the unconstitutionally-obtained evidence from the United States to be dealt with according to law.

A. Issue #1: WERE THE RESIDENTIAL SEARCHES AUTHORIZED BY LAW?

[35] There were two search warrants obtained and executed in Canada, one at his family home in Stouffville Ontario, and the other at his residence in Chatham-Kent. Mr. Viscomi says that they were not lawfully issued. He relies on the decision of the Court of Appeal quashing the earlier extradition order on the basis that the 2012 ROC did not provide a sufficient basis to establish his identity as the user of the computer at the IP address registered to him.

[36] Before discussing the merits of this submission, I will provide context by setting out the most relevant history leading to the granting of each of the search warrants.

a) Overview of Factual and Investigative History Prior to Obtaining the Search Warrants

(i) The American Investigations

[37] The offences were committed on the night of January 5 and 6, 2012. The victims, a 17 year-old girl and her 13 year-old sister, were in their home in Virginia Beach. The 17 year-old was communicating by computer with an individual, alleged to be Viscomi, using the name “Jamie Paisley”on an online chat website called Tiny Chat. On the pretext of offering to help the child keep her computer safe, “Jamie Paisley” persuaded her to move to Skype. The Skype communications started as a chat, then moved to a Skype video that allowed “Jamie Paisley” to see her, but prevented her from seeing him.

[38] I need not detail the criminal behavior alleged to have been committed by Viscomi, posing as “Jamie Paisley”. It is sufficient for present purposes to repeat Blair J.A.’s summary of his alleged behavior from the decision of the Ontario Court of Appeal quashing the committal order:

It is alleged that during the communication, the person coerced, threatened, extorted and otherwise manipulated the girl in ways that led to her exposing her breasts and then engaging in a series of explicit sexual and sexually violent activities with her 13 year-old sister [20] .

[39] While these offences were in progress, an older sibling entered the room and found her young sisters, undressed and very upset. She alerted her father, who called the police. The victims’ parents turned over the children’s computer to the Virginia Beach police. It contained a complete record of the criminal misconduct over the internet, through chat rooms and over Skype.

[40] The Virginia Beach police investigated the contents of the victims’ computer. They traced the contacting source to a Canadian Internet Service Provider (ISP). They contacted the ISP, Zing Networks, located in King City, Ontario. The Virginia police made a law enforcement request under the Personal Information Protection and Electronic Documents Act, S.C. 2000 (“PIPEDA”). Zing Networks disclosed to the Virginia police that the IP address, 24.138.105.47 was registered to “Mark Viscomi”, at the specified Stouffville address. A home telephone number was also provided by Zing.

[41] Although the extradition application before the court relates to the Virginia Beach crimes, I point out that this was not the only relevant cross-border internet child exploitation investigation being undertaken by American authorities. The same IP address, 24.138.105.47 was also of interest to police in Washington County, Wisconsin, who were investigating similar allegations arising on January 22, 2012, involving a 16 year-old victim. That communication emanated from the same IP address, 24.138.105.47. It was initiated in Tiny Chat, the same chat room as in the Virginia case. The perpetrator identified himself in Tiny Chat by the username “Monkeyball”. Then the chat moved to Skype, at which point, “Monkeyball” became “Johnny Wright”.

[42] Wisconsin investigators made a PIPEDA request to Zing Networks which voluntarily provided the same subscriber information it had recently given to the Virginia police.

[43] American authorities shared this information - relating to both the Virginia and the Wisconsin investigations - with Canadian police.

[44] The Viscomi ISP information was obtained without prior judicial authorization. At that time, the governing authority was that a warrant was not needed [21] . In 2014, however, the Supreme Court of Canada held in R. v. Spencer [22] that prior judicial authorization is needed.

[45] As I indicated earlier in these reasons, in its decision quashing the committal for extradition order issued by K.L. Campbell J., the Court of Appeal foresaw the likelihood that the Crown would institute further proceedings. For that reason, the Court decided that the implications of the Spencer decision warranted comment. Justice Blair discussed the issue at paras. 43-47, and pointed out that the evidence that was obtained without warrant in Spencer had not been excluded by the Court because the law as understood at the time was that a warrant was not needed, the police reasonably believed, based on their understanding of the law at the time, that a warrant was not needed, and thus application of the Grant test militated against exclusion under s. 24(2) of the Charter.

[46] Justice Blair concluded his discussion by stating that “I do not see any basis involving the warrantless ISP “search” that would lead to a different result”. In other words, even if the IP information had been obtained by Canadian, rather than American, authorities, the Spencer decision cannot assist Mr. Viscomi.

(ii) The Initial Canadian Investigation

[47] Detective Constable Kip Wohlert of the Ontario Provincial Police began a Canadian investigation. He confirmed that the phone number provided by Zing Networks was registered to “S. Viscomi” at the Stouffville address. He did a Google Maps search and obtained a screen shot of the home at the Stouffville address. He also did an MTO database check and determined that Marco Viscomi had a driver’s licence registered to him at the Stouffville address. He had a police officer attend at the Stouffville address. The officer confirmed that the Google Maps screen shot was of the same residence. The officer also observed a motor vehicle in the driveway and noted its make and licence plate number. DC Wohlert determined that the vehicle was registered to “Salvatore Viscomi” at the same Stouffville address.

b) The Informations to Obtain Search Warrants for the Stouffville Address and the Chatham-Kent Address

[48] On the strength of the information that DC Wohlert had gathered in Canada, supplemented by the American-gathered evidence, he prepared an application for a search warrant for the Stouffville address. The application was supported by a very detailed affidavit known as an Information to Obtain (ITO). The ITO, including appendices, is 53 pages long.

[49] The contents of the ITO are fairly and accurately summarized in the Crown factum at paragraphs 19 to 22, and I quote from them here:

19. The prescribed Form 1 information described the place to be searched as the “dwelling-house” of Mark Viscomi at [the Stouffville address]. [23]
20. Appendix A to the ITO set out the things to be searched for, and specifically included computers or other electronic devices that were used to access the Internet and/or the programs Skype, Stickcam or Tiny Chat by Mark Viscomi or an unknown male person, and evidence relating to the offences stored on computer devices. [24]
21. In Appendix C to the information, DC Wohlert set out the grounds for his beliefs that an offence had been committed and that evidence of the offence would be found at [the Stouffville address]. He first set out his experience and training, including that he had been an OPP officer for 25 years, and was assigned in 2006 to the Child Pornography Section of the Investigation Bureau, the duties of which included investigations into child luring over the Internet. He disclosed that he had received computer training and completed the basic and advanced Canadian Internet Child Exploitation Course at the Canadian Police College. [25] He also provided a list of computer-related definitions [26] and described the relevant involved persons, including: “Mark VISCOMI is the suspect in this investigation. He was born on the 19th day of May 1985 and resides at [the Stouffville address].” [27]
22. DC Wohlert outlined the history of the American investigations into “Jamie Paisley” (the Virginia offences) and “Johnny Wright” (the Wisconsin offences), as described above, and disclosed information from the Canadian investigation suggesting that [sic] was a residential home where at least Salvatore Viscomi and Marco Viscomi resided. [28] The ITO disclosed the intention to do a comprehensive search of any seized computer devices and included information from detectives of the OPP Electronic Crime Unit regarding anticipated steps of the forensic examination. [29]

[50] The search warrant for the Stouffville address was issued that same day, March 21, 2012, at 9:25 a.m. [30] It was a standard Criminal Code s. 487 Form 5 search warrant that authorized the search and seizure of the items listed in Appendix A of the ITO between 9:25 a.m. and 8:59 p.m.

(c) Execution of the Search Warrant at the Stouffville Address

[51] As noted in the Crown factum at paragraph 24, when police arrived at the Stouffville address that morning they were told by his sister, Julia Viscomi, that Mark Viscomi had left on March 18 to live in Chatham-Kent, Ontario, to work at the local hospital as a medical student and that he had taken his laptop computer with him. The police seized some items from a bedroom including a computer that had not been used since 2008. The police concluded that Mr. Viscomi’s laptop computer that he had taken with him to Chatham-Kent was the computer that likely contained evidence of the internet child abuse.

(d) The Information to Obtain a Search Warrant for Mr. Viscomi’s Chatham-Kent Address

[52] The police had learned from the sister that Mr. Viscomi was living in Chatham-Kent and working at the local hospital in furtherance of his medical studies, but they did not have his residential address. A police officer spoke to the hospital security department and it was confirmed that Mark Viscomi was a medical student there and that his residence was unit #5, 150 Grand Ave. W., Chatham-Kent.

[53] Later that day (March 21), DC Wohlert swore a second ITO and obtained a search warrant for Viscomi’s Chatham-Kent address. The second ITO included all the information from the first ITO, and the additional information about Viscomi having moved to Chatham-Kent for his medical studies and that Julia Viscomi had advised that he had taken his laptop computer with him.

[54] The search warrant for Viscomi’s Chatham-Kent residence was issued that afternoon. Like the Stouffville warrant, it was a standard Criminal Code s. 487 Form 5 search warrant. It authorized the search and seizure of the items listed in Appendix A of the ITO between 4:00 p.m. and 8:59 p.m.

(e) Discussion of Issue #1 and Conclusion: The Search Warrants Were Lawfully Issued

[55] Mr. Viscomi relies on the decision of the Ontario Court of Appeal quashing the extradition order on the basis that the ROC before the extradition judge did not provide a sufficient basis to support the inference that Viscomi was the user of the IP address at the time of the Virginia crimes.

[56] I have concluded that this argument is without merit. The test for committal for extradition is much higher than the test for issuance of a search warrant.

[57] Committal for extradition requires that there be sufficient evidence capable of reasonably supporting a conviction [31] . To state the obvious, a conviction cannot be registered on probability, but requires proof beyond a reasonable doubt. In contrast, the test for issuance of the search warrants is whether the ITOs demonstrated a reasonable probability that relevant evidence would be found at the Stouffville address and the Chatham-Kent address. To support the granting of a search warrant, ultimate culpability is irrelevant. The ITO need only provide reasonable grounds to believe that evidence relating to the offences would be found in the searches. [32]

[58] In the Court of Appeal decision quashing the extradition committal order, Blair J.A. concluded that without more information about the nature of the IP address, the identity of the perpetrator could not be established beyond a reasonable doubt based only on the fact that the IP address that was used was registered to Mr. Viscomi at the Stouffville address. Justice Blair drew the analogy of a recklessly driven vehicle running a red light, striking another vehicle causing serious personal injury to that vehicle’s passenger, then leaving the scene. In the hypothetical scenario, a witness has taken down the licence plate number of the hit-and-run vehicle. Justice Blair concluded that the registered owner of the vehicle could not be convicted on that evidence alone, because it would be insufficient to prove the identity of the registered owner of the vehicle as the driver of the car [33] .

[59] However, to apply the hit-and-run analogy in the context of issuance of a search warrant, I am strongly of the view that an ITO setting out the same information would easily satisfy the “reasonable probability” test for issuance of a search warrant.

[60] Moreover, in the case of Mr. Viscomi, the ITO provided additional information that provided, in my view, a much stronger basis for the issuance of the search warrants than would be the case with the hypothetical hit-and-run accident scenario referred to by the Court of Appeal.

[61] I note that the 2012 ROC that was before the extradition judge and the Court of Appeal related only to the Virginia Beach crimes and contained no reference to the Wisconsin crimes. However, the ITOs before the justices who issued the search warrants contained detailed reference to the Wisconsin crimes, committed by someone using the same IP address that was registered to Mr. Viscomi, and detailed information was provided that virtually identical predatory methods were used in the Wisconsin crime. That information, not contained in the ROC under consideration by the extradition judge and the Court of Appeal, strongly supports the inference that the crimes, committed on different days upon victims in different places, were committed by the same individual.

[62] The uncertainty in the 2012 ROC about the nature of the IP address registered to Mr. Viscomi led to the quashing of the extradition order because it did not provide enough information to prove the identity of the perpetrator beyond a reasonable doubt. In my view any uncertainty about the nature of the IP address is a matter of ultimate culpability, and thus is irrelevant on a search warrant issuance inquiry.

[63] The test on review of the issuance of a search warrant is well-established. The warrants are to be presumed to be valid. The issue on this review is whether Mr. Viscomi has demonstrated that there was no basis for issuing the search warrants. The question on review is whether the warrants could have been granted.

[64] I have no hesitation in concluding that the warrants were lawfully issued. Indeed, many of the same arguments were before my colleague Code J. on the Wilson application to re-open the ex parte MLACMA proceedings. 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). I am in complete agreement with Code J.’s observation that the ITOs were:

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.

[65] I conclude that the search warrants were lawfully issued. The first Charter argument fails.

B. ISSUE # 2 WAS THE MANNER OF THE RESIDENTIAL SEARCHES CONTRARY TO THE CHARTER?

[66] Mr. Viscomi raises two issues concerning the manner of the residential searches. The first relates to his alleged arbitrary detention for a period of time prior to and during the search. The second is characterized as “overseizure”, and constitutes an assertion that the police breached s. 8 of the Charter by accessing and recording areas of the computer that were not authorized by the warrant. I will deal with the arbitrary detention issue first.

a) The arbitrary detention issue

[67] Police entered Mr. Viscomi’s Chatham-Kent apartment and seized a laptop computer and an external hard drive.

[68] Mr. Viscomi was not initially present but he was located at the hospital where he worked, and he attended and stood outside his apartment while the search was being conducted. The Crown did not concede that Mr. Viscomi was under detention. Indeed, the Crown brought a motion at the outset of this Charter application to summarily dismiss Mr. Viscomi’s ss. 9 & 10 Charter application, on the basis that there is no admissible evidence before the court to support his claim. I declined to hear the Crown’s motion, because I considered that in light of my earlier ruling limiting Mr. Viscomi’s disclosure to what was already in his possession, fairness required that I proceed with the Charter application on the assumption that Mr. Viscomi was indeed detained for a period of time and that he may not have received the appropriate Charter- mandated caution. In other words, I was concerned that Mr. Viscomi not be prejudiced in his ability to argue the sections 9 & 10 motions because he did not have every scrap of disclosure relating to those purported breaches.

[69] The materials before the court do provide some support for the assertion that Mr. Viscomi was detained for about two hours around the time of the search of his apartment in Chatham-Kent. I will set it out here.

[70] An entry in the notes of an officer Chickowski states that at 16:42 hrs, Mr. Viscomi was “cautioned re. s. 271 cc & 152 cc”. [34] Since a caution is mandated upon detention, Chickowski’s entry suggests that Mr. Viscomi had been detained prior to being cautioned. However, there is not enough information to permit me to conclude that the “caution” met constitutional standards.

[71] An entry in another officer’s notes also supports the conclusion that Mr. Viscomi was detained. I reproduce the notes of DC Teetzel, apparently relating to events at 17:23 hrs:

o Stand by as Chickowski gives Viscomi Copy of unsigned S/W and goes over it with him again. o Overheard Viscomi say his laptop has ‘some’ of those programs on it when asked if he had the ones listed in paragraph #1 of App ‘A’ o Overheard Viscomi say his User name isn’t ‘Johnny Wright 842’ it is ‘Johnny Wright 84111’ [35] (emphasis in original handwritten notes)

[72] Also, in a “General Occurrence Report” prepared by Detective Jason Belanger on March 22, 2012 concerning his initial examination of the laptop computer and the external hard-drive on March 21 shortly after the seizures, Belanger stated that he had been advised by DC Teetzel of the Chatham-Kent Police Service that “the party [Chatham-Kent Police] had detained, indicated, under detention, that he was Johnny Wright 8411 and not “Johnny Wright 842”. [36]

[73] There is nothing in any of the material before me on this Charter application to suggest that Mr. Viscomi was treated disrespectfully or aggressively during the period of his detention. Mr. Viscomi was entitled to adduce evidence on this application but has not done so. I will therefore proceed on the assumption that his detention was not accompanied by otherwise inappropriate conduct by the police.

[74] After the search of Mr. Viscomi’s apartment was completed, he was free to leave and told police he “was likely going to head to his parents”, presumably his family home in Stouffville.

[75] Assuming that Mr. Viscomi was arbitrarily detained contrary to s. 9 of the Charter, and assuming that his s. 10 rights were violated, I am satisfied that the Charter breaches were not serious and that the officers acted in good faith in the manner in which they conducted themselves.

[76] As of March 21, 2012, the officers believed on reasonable grounds that evidence of the commission of very serious internet cross-border child sexual predation was likely to be found on computer devices in Viscomi’s Chatham-Kent residence. The chats and other communications are reproduced in the ITOs and the ROC before this court. Although I have not set out the contents of the chats and other communications emanating from the IP address registered to Mr. Viscomi, the fact is that they are extremely chilling and involve coercive, extortionate conduct against the child victims.

[77] Mr. Viscomi submits that his unlawful detention was more serious because of the passage of time of 3.5 months between the January 4 & 5 offences and his detention on March 21. I appreciate that the delay between the commission of the offences and the detention of Mr. Viscomi is a factor supporting a finding that his detention was arbitrary. But in my view the delay’s importance is somewhat attenuated by the fact that the police had reasonable grounds to believe that on March 21, 2012, Mr. Viscomi was in possession of a computer containing horrific child pornography.

[78] I appreciate that it would be wrong to say that the arbitrary detention is irrelevant because there is no causal link to the seizure of the items. I am aware that the court must take a generous approach to the issue of whether the evidence was obtained in a manner that infringed the Charter. In this case, there appears to have been a “temporal and transactional link between the presumed breaches, the execution of the warrant, and the retrieval of the evidence”. Although the link had no impact on the validity of the search and seizure, the issue of admissibility must nevertheless be evaluated under s. 24(2) of the Charter. [37] I will address that issue when I deal with the issue of whether the evidence should be excluded under the Grant analysis. [38]

b) The “Overseizure” Issue: the March 21 Forensic “Preview” Examination

[79] Mr. Viscomi’s position is that when Detective Belanger did the “preview” examination of the seized computer shortly after its seizure on March 21, he exceeded the authority conferred on him by the search warrant. I disagree.

[80] A central focus of the ITOs that led to the issuance of the Stouffville and Chatham-Kent search warrants was on the activities of an individual using the IP address registered to Mark Viscomi under the names Jamie Paisley (the Virginia child victims), Johnny Wright (the Wisconsin child victim) and other names specified in the ITO. The search warrants authorized search and seizure of the items contained in Appendices A & B of the ITOs. Among the items authorized to be searched for and seized were “any computers that were used to access the Internet and/or the web programs, Skype, Stickcam, or Tiny Chat by Mark Viscomi or an unknown male person”, and importantly, “[a]ny chat logs or user name information between [name of victim], or [name of victim] and “Jamie Paisley” and/or “Johnny Wright” and/or “Johnny Wright 842” and/or Hadley135@hotmail.com and/or “Monkeyball” and/or jimbos939393 and/or makemyday393@hotmail.com” (emphasis mine).

[81] The search warrants also authorized the seizure of any printed chat logs “from [name of victim] or [name of victim] and/or “Jamie Paisley” and/or Johnny Wright” and/or Johnny Wright842”, etc.

[82] In my view it is obvious that the search warrant authorized the search and seizure of the computer and any contents related to Jamie Paisley or Johnny Wright, among other user names.

[83] Mr. Viscomi takes the position that the authority to search was narrowly circumscribed such that the computer search could not extend beyond the names specifically particularized in Appendix A and referred to above. For example, he says that the police were not entitled to look at other files that contained the name “johnnywright”, other than the ones specified above. He says that the police “materially exceeded the scope of the warrant by accessing and recording areas of the computer that were not authorized by the warrant”, thereby breaching s. 8 of the Charter.

[84] Both sides rely on the unanimous decision of the Supreme Court of Canada in R. v. Vu [2013] 3 S.C.R. Judgment was delivered in November of 2013, well after the events under consideration here. Importantly, the Court recognized the changing reality brought on by the rapid advancement of digital and internet technology. Cromwell J. pointed out that “the traditional legal framework holds that once police obtain a warrant to search a place for certain things, they can look for those things anywhere in the place where they might reasonably be; the police do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets. Cromwell J. characterized the question for the Court as this: “should our law of search and seizure treat a computer as if it were a filing cabinet or a cupboard?” [39] .

[85] The Court held that the search of a computer was not like the search of a filing cabinet or a cupboard. The search of a computer requires specific pre-authorization. The Court recognized the principle that the privacy interests in the contents of one’s personal computer are of the highest order. Cromwell J. stated at para. 40: “it is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer”.

[86] The Court held that it is not enough if a search warrant simply authorizes the search of a place for specified items, without specifying that any computer that is seized may also be searched. In that situation, if the police were to search the computer, the search would be in violation of s.8 of the Charter.

[87] In Vu, the warrant did not specify that the contents of the computer could be searched. The Court nevertheless found that the police acted reasonably in searching the computer. The law had been uncertain, and the police had acted reasonably in the manner in which the search was carried out. Applying the Grant analysis, the Court held that the evidence was admissible notwithstanding the Charter breach.

[88] Cromwell J., speaking for a unanimous nine-person court, provided guidance on the issue of the extent to which the manner of a computer search had to be specified.

[89] The Court rejected the submission that detailed conditions, or “search protocols” must be set out in search warrants dealing with computers and their contents.

[90] Cromwell J. stated, at para. 54:

…I am not convinced that s. 8 of the Charter requires, in addition, that the manner of searching a computer must always be spelled out in advance. That would be a considerable extension of the prior authorization requirement and one that in my view will not, in every case, be necessary to properly strike the balance between privacy and effective law enforcement…

[91] And at para. 57, Cromwell J. stated:

… requiring search protocols to be imposed as a general rule in advance of the search would likely add significant complexity and practical difficulty at the authorization stage. At that point, an authorizing justice is unlikely to be able to predict, in advance, the kinds of investigative techniques that police can and should employ in a given search or foresee the challenges that will present themselves once police begin their search. In particular, the ease with which individuals can hide documents on a computer will often make it difficult to predict where police will need to look to find the evidence they are searching for. For example, an authorizing justice's decision to limit a search for child pornography to image files may cause police to miss child pornography that is stored as a picture in a Word document. In short, attempts to impose search protocols during the authorization process risk creating blind spots in an investigation, undermining the legitimate goals of law enforcement that are recognized in the pre-authorization process. These problems are magnified by rapid and constant technological change. (emphasis mine)

[92] This case presently before this court illustrates the wisdom of the holding in Vu that restrictive search protocols are generally inadvisable. On the facts of this case, it would have been unreasonable – indeed, impossible - to create an appropriate protocol without profoundly undermining the legitimate goals of law enforcement. The ITOs in this case were thorough and detailed. They were not misleading, and they were prepared with professionalism and restraint. It would have been neither reasonable nor feasible to impose restrictive search protocols in the circumstances of this case.

[93] In conducting the forensic search of the seized computer and hard drive, the police are required to act reasonably, but in doing so, they are entitled to use their common sense. In this case, the undisputed facts are that an individual identifying as Jamie Paisley and/or Johnny Wright committed these serious crimes using the IP address registered to Mr. Viscomi.

[94] I find that the search warrants conferred authority for the police to search the computer and hard drive to look for those names and to search for any logs or chats relating to them. The fact that there were numbers after the names in the files on the computer is in my opinion, entirely irrelevant. In the digital internet era, usernames can be altered by adding additional numbers to a name in an instant. Anyone with even a passing familiarity with electronic technology understands this basic reality.

[95] I also wish to make it clear that in arriving at my conclusion concerning the entitlement of the police to search the computer for anything apparently associated with the usernames Johnny Wright or Jamie Paisley, I have not relied at all on any utterances attributed to Mr. Viscomi. I consider any statements that may have been made by Mr. Viscomi while he presumably was under detention to be irrelevant.

[96] Put simply, Det. Belanger did not need information from Mr. Viscomi in order to lawfully conduct his search of the seized computer.

[97] In his “preview search” of the computer on March 21, 2012, Det. Belanger did not exceed the authority granted by the search warrant.

[98] For these reasons, I reject the “overseizure” argument.

[99] I find that no breaches of s. 8 occurred either on or before March 21, 2012.

C. Issue #3: WERE THE FURTHER FORENSIC SEARCHES AUTHORIZED BY LAW?

[100] After the seizure of the computer equipment on March 21, 2012, the police conducted further forensic searches of their contents. On April 17, 2012, DC Wohlert assigned a forensic analyst, Darryl Hawke, to forensically image the seized laptop computer and external hard drive.

[101] The applicant’s first position is that since the warrants were invalid, the subsequent forensic examinations were unlawful. I have already rejected that argument.

[102] Mr. Viscomi’s second position is that the search warrant conferred search and seizure authority on the police only during the period specified in the warrant, i.e. from 4:00 p.m. to 8:59 p.m. on March 21, and that any search conducted outside that time frame was conducted in violation of the authority of the warrant and thus in violation of s. 8 of the Charter.

[103] Importantly, the search warrant conferred specific pre-authorization to search the computer itself. This pre-authorization was conferred a year and a half prior to the decision of the Supreme Court of Canada in Vu, which held that pre-authorization was required before a computer search could be conducted.

[104] The ITO that was presented to the authorizing justice plainly spelled out the detailed nature of the searches that were contemplated. Indeed, three pages of the ITO were devoted to informing the authorizing justice of the steps that were contemplated and that the process would be time-consuming and painstaking [40] .

[105] A fair reading of the ITO makes it clear that pre-authorization was being sought not only to enter and seize relevant evidence, but also to conduct a detailed and time-consuming examination of the entire hard disk drive of the computer.

[106] The contemplated search could not possibly have been conducted within the five-hour time period specified in the search warrant. As I read the warrant, the time period must be taken to refer to the time during which the police were permitted to enter Mr. Viscomi’s apartment to search and seize any relevant evidence. The warrant contains no specified time limitation for conducting the forensic examination of the computer equipment.

[107] I conclude that the time limitations specified in the search warrant referred to the authorization to enter Mr. Viscomi’s apartment. The time limitations did not extend to the search of the computer equipment itself.

[108] This is not a case like R. v. Little [41] , where the computer equipment was already in the hands of the police when the warrant to search was issued. Moreover, in Little, the warrant specified that the search of “communications” was to take place within a specified time frame [42] . The trial judge found that the specified terms of the search warrant had not been complied with and that Little’s s.8 rights had been violated as a result.

[109] In the case before me, unlike in Little, the warrant did not impose time-limited search protocols. The warrant did not spell out the manner in which the computer searches were to be conducted, nor did it impose specific time constraints on the computer searches. This approach accords precisely with the approach endorsed a year and a half later by the Supreme Court of Canada in Vu. As noted above, the Court held in Vu that although pre-authorization is necessary for computer searches, a search warrant spelling out in advance the manner of searching a computer would generally be neither necessary nor appropriate. The Court held that imposition of search protocols at the authorization stage would add unnecessary complexity and practical difficulty that would risk unduly undermining the public interest in effective law enforcement.

[110] I find that it was implicit in the warrants that the police were permitted to conduct the forensic examinations at a later date [43] .

[111] I conclude that the searches conducted after March 21 were conducted lawfully and not in breach of s. 8 of the Charter.

D. Issue #4: WAS THE CONTINUED DETENTION OF THE ITEMS CONTRARY TO THE CHARTER?

[112] Mr. Viscomi raises three issues concerning the continued detention of the seized items. I will address each of them in turn.

(a) Was there a violation of s. 489.1 of the Criminal Code?

[113] Mr. Viscomi’s position is that there was non-compliance with the requirement in s. 489.1 of the Criminal Code that the seized items be brought before a justice “as soon as practicable”. This argument applies to two reports: the report for the March 21, 2012 search warrant that was filed on April 18, 2012, and the report for the August 10, 2012 warrant that was filed on September 5, 2012.

[114] Compliance with s. 489.1 is the gateway to other important protections for people whose items the state holds in detention. I recognize that a violation of the “as soon as practicable” requirement in s. 489.1 is a violation of the rights of the individual protected by s. 8 of the Charter: R. v. Garcia-Machado 2015 ONCA 569, [2015] OJ No. 4146 (C.A.), per. Hoy ACJO at para. 55.

[115] A violation of s. 489.1 must be taken seriously by the courts.

[116] In the case before me, however, I am simply not persuaded that there was a failure to comply with the “as soon as practicable” requirement in s. 489.1. In Garcia-Machado, the delay exceeded three months. The “delay” with respect to the March 21, 2012 seizure was 28 days. The “delay with respect to the August 10 seizure was 25 days. This is a very different situation in terms of complexity and the length of delay than in Garcia-Machado, where the nature of the investigation was less complex and the delay was much longer.

[117] I conclude that there were no breaches of s. 489.1 of the Criminal Code.

(b) Was the August 10 “Re-seizure” Warrant Invalid Because the Earlier Warrants were Invalid?

[118] Mr. Viscomi submits that the August 10, 2012 “re-seizure” warrant was invalid because the March 21, 2012 warrants were invalid. I have already ruled that the March 21 warrants were lawful. This argument therefore fails.

(c) Did The Officer Who Prepared the August 10, 2012 ITO Fail In His Duty of Utmost Candour and Good Faith?

[119] DC Wohlert was the officer who prepared the ITO in support of the August 10, 2012 search warrant. Mr. Viscomi alleges that DC Wohlert’s affidavit was seriously misleading, not only because it purportedly omitted important material facts, but also because it contained false statements as to the purpose of seeking the search warrant itself.

[120] An affiant preparing an ITO in support of an ex parte application has a strong duty of utmost candour and good faith. [44] DC Wohlert had a responsibility to include all material facts that were relevant to the issue of granting the warrant. He was required to set out the facts fully and frankly so that the authorizing judge could decide whether the warrant should be granted. He was not, however, required to spell out the entire history of the investigation or of other contemplated proceedings that were not material to the issue of whether the warrant should be granted. The affiant may not pick and choose among relevant facts in order to achieve the desired outcome. What was essential was that the ITO not be misleading, including by omitting facts that were material to whether the warrant should be issued. [45]

[121] Mr. Viscomi’s position is that DC Wohlert failed in his duty of utmost candour and good faith in the August 10, 2012 ITO in two ways:

(a) By presenting a false and misleading picture that the warrant was being sought in relation to domestic proceedings, when the true purpose was to bridge the time required to execute the “urgent” request to send the evidence to the United States for prosecution; and (b) By failing to disclose that the further areas of the computer that police now sought judicial authorization to search included “johnny.wright84111” that police had already forensically searched contrary to the terms of the March 21, 2012 search warrant.

[122] I will discuss each of these claims in turn.

(a) Was the Warrant Sought For the Purposes Sworn To In The ITO, or for the Ulterior Purpose of Bridging the Time Before the MLACMA Proceedings?

[123] The submission is that DC Wohlert’s ITO was intentionally misleading; that it omitted important, material facts; and that the true purpose in seeking the search warrant was not to conduct further searches, but to obtain authorization to retain the evidence for an entirely different purpose: until ex parte gathering and sending orders could be obtained under MLACMA.

i) Factual background

[124] First, I will set out the relevant background facts needed to evaluate the claims that the August 10, 2012 search warrant ITO was intentionally misleading.

[125] On August 7, 2012, an ROC was certified by U.S. authorities in Virginia. A diplomatic note requesting Marco Viscomi’s extradition followed the next day, August 8. The following day, August 9, the Minister of Justice issued Authority to Proceed. Viscomi was arrested on an extradition warrant that day. [46]

[126] The decision was made to withdraw the Canadian charges in favour of the extradition proceedings. On August 10, The U.S. Justice Department made a formal “Urgent Request for Assistance in the Investigation and Prosecution of Marco Viscomi”. [47] The request noted that Viscomi had been arrested on August 9, and indicated that:

“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”…

[127] The Canadian charges were withdrawn on August 10, 2012. In withdrawing the charges in the Ontario Court of Justice in Newmarket, the Assistant Crown Attorney made these comments:

Mr. Viscomi has been arrested on an extradition warrant for the United States, he’s currently awaiting his show cause hearing and there may be some sort of overlap between the charges that he faces here and the ones that the Americans are bringing against him. For that reason we’re asking the matters before this court be withdrawn at this time on the understanding that…if in fact the extradition is not successful, we would seek to relay these charges” [48]

[128] That same day, August 10, 2012, the ITO prepared by DC Wohlert was presented to a justice in support of an application for a search warrant. The ITO focused on the need to conduct further forensic investigation of the seized computer equipment and did not refer to the Canadian charges, or the extradition application or the Mutual Legal Assistance Treaty request to provide the Canadian-gathered evidence to the American authorities.

[129] The 48-page ITO contained much of the same information contained in the earlier ITOs. However, the ITO also contained information gleaned from the seized computer equipment that suggested that Viscomi had committed other internet child sexual exploitation crimes. The ITO indicated that the seized materials were located at the OPP Electronic Crimes Section in Orillia, Ontario, and the ITO requested authority to seize the material for further examination in relation to other crimes that may have been committed by Mr. Viscomi. [49]

[130] Since April 18, 2012, the seized equipment had been held under the authority of an Order of Disposition issued under s. 490(1) of the Criminal Code. [50] The order provided that “charges have been laid and these listed items are required for court and a request to retain these items until the completion of the court matter is being made”. The order authorized the detention of the materials “until the completion of all proceedings”.

ii) Discussion and Conclusion

[131] Viscomi’s position is that DC Wohlert’s failure to include this information in the ITO was for the purpose of misleading the authorizing justice. It is submitted that DC Wohlert was not, as he swore under oath, seeking a search warrant to investigate further possible offences, but rather he was using the search warrant procedure as a means to achieve an entirely different objective: to get authority to hold the seized items until the ex parte MLACMA proceedings could be completed.

[132] It obviously would be a serious matter if the record supported an inference that DC Wohlert falsely swore that his purpose was to further examine the fruits of the earlier computer searches conducted by the forensic expert, Darryl Hawke when his true purpose was to retain the items for the MLACMA proceedings.

[133] However, I am completely satisfied that there is no basis to conclude that the ITO was misleading.

[134] First, there was every reason for Canadian authorities to want to conduct further investigation of the seized computer equipment. Any doubt about that issue is removed by a perusal of the testimony of the forensic expert Mr. Darryl Hawke, at the August 15, 2012 bail hearing before Benotto J. Mr. Hawke testified in some detail about the forensic investigations he had undertaken, but he made it clear that his investigation had only scratched the surface of what was contained on the computer.

[135] A short excerpt of Mr. Hawke’s evidence will suffice to give a flavor of what had been learned and what remained to be learned:

We have done very little analysis or even reviewed the data that’s been extracted. There is an enormous amount of chat that we have extracted. I am estimating between a 100, 200,000 lines of chat.

I have looked at a very small percentage of the Skype chat. And in just that, I have identified almost two-dozen young ladies who have either exposed themselves or been enticed into perform [sic] other sexual acts on themselves. [51]

[136] The ITO did not falsely claim that more investigation was intended and that further authorization was being sought for that purpose.

[137] Furthermore, if DC Wohlert ITO had included the omitted information in the ITO, it would have, in my view, strengthened rather than undermined the basis for issuing the search warrant.

[138] There was clearly a solid basis for continuing the criminal investigation while the computer equipment was in Canada. There was nothing improper in the objectives of DC Wohlert.

[139] It may have been preferable if the ITO had made mention of the extradition request and the intended MLACMA proceedings, but the failure to include the information does not support the claim that the affiant failed in his duty of utmost candour and good faith, thereby misleading the authorizing justice into issuing the August 10, 2012 warrant.

[140] The impugned omissions were not “material” omissions.

(b) The failure to disclose that police had already searched “johnny.wright84111”

[141] Earlier in these reasons, when discussing the “overseizure” submission raised on behalf of Mr. Viscomi, I held that the March 21, 2012 search warrants authorized the search of anything associated with “Johnny Wright” or “Jamie Paisley”. Therefore this issue is not relevant. Based on the mountain of material before me in this case, it seems highly likely that this omission was a mere oversight. In any case, it is of no significance.

[142] I therefore reject the arguments raised in Issue #4. The continued detention of the items was not contrary to the Charter.

E. Issue #5: WAS THE SENDING OF THE EVIDENCE CONTRARY TO THE CHARTER?

[143] As I noted earlier in these reasons, Viscomi brought an application to re-open the ex parte MLACMA proceedings that led to the sending order. Code J. dismissed the application and provided comprehensive reasons for his decision. [52] Viscomi’s application for leave to appeal was dismissed by Strathy C.J.O. on October 16, 2014. [53]

[144] Counsel for Viscomi made it clear in oral argument that she was not asking this court to re-litigate the lawfulness of the sending order, but submitted that it was relevant to the issue of remedy under s. 24 (2) of the Charter.

[145] I am in complete agreement with the reasons of Code J. There is no need to deal with this issue further.

[146] I turn now to the final issue.

F. Issue #6: WHAT IS THE APPROPRIATE AND JUST REMEDY?

[147] Given my findings in these reasons, it is not necessary to deal with the remedy issues in detail.

[148] I have concluded that there were no breaches of s. 8 of the Charter. I have held that I am prepared to presume that Mr. Viscomi was detained for a relatively brief period of time while his apartment in Chatham-Kent was being searched. I have indicated that on the record before me, I cannot conclude that any caution that was given upon his detention was in Charter- compliant language. I held, however, that any breaches of sections 9 and 10 of the Charter were not serious; that the police conducted themselves responsibly and in good faith; and that any statements that may have been made by Mr. Viscomi had no bearing whatsoever either on the search or on any other aspect of the investigation.

[149] The appropriate approach to a consideration of the availability of the remedy of exclusion in the context of an extradition hearing is by means of an analysis under s. 24(2). [54]

[150] S. 24(2) directs that where evidence is obtained in a manner that infringes a Charter right, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

[151] In R. v. Grant, 2009 SCC 32, the Supreme Court emphasized that the purpose of s. 24(2) is to protect and preserve public respect for the administration of justice. The court emphasized that the focus must not be on immediate reaction to a decision in an individual case, but on the long-term maintenance of the integrity of and public confidence in the justice system. The inquiry must ask whether a reasonable person, knowing all relevant facts and being informed about the underlying values of the Charter would conclude that admission of the evidence would bring the administration of justice into disrepute [55] .

[152] The majority held that a judge considering an application to exclude evidence under s. 24(2) must consider and balance three factors:

i. The seriousness of the Charter- infringing state conduct ii. The impact of the breach on the Charter- protected interests of the accused; and, iii. Society’s interest in the adjudication of the case on its merits.

[153] Given the findings that I have set out in these reasons, I see no need to discuss the application of the Grant factors in detail.

[154] With respect to the first Grant factor, the seriousness of the Charter- infringing state conduct, I have found that the presumed infringements of sections 9 and 10 were at the least serious end of the spectrum. The state conduct would only minimally undermine public confidence in the administration of justice.

[155] With respect to the second Grant factor, the impact of the breach on Mr. Viscomi’s Charter- protected interests, I have found that although there was a temporal and transactional link between the presumed section 9 and 10 breaches and the search and seizures, the breaches had no impact on the lawfulness of search and seizure of the Canadian-gathered evidence. Therefore, the presumed s. 9 & 10 Charter breaches had no meaningful impact on Mr. Viscomi’s Charter- protected interests.

[156] With respect to the third Grant factor, society’s interest in the adjudication of the case on its merits, the importance is obvious. The allegations involve serious predatory cross-border sexual exploitation of children over the internet. The Canadian-gathered evidence is real, relevant, and reliable.

[157] In balancing the three Grant factors, I consider that the seriousness of the breaches, if they occurred, fall at the lower end of the spectrum of misconduct. The impact of the breaches on the Charter- protected interests of Mr. Viscomi was also minimal and had no impact on the lawfulness of the search and seizure of the computer equipment. On the other hand, society has a strong interest in adjudication of these serious allegations on their merits.

[158] I conclude that the Canadian-gathered evidence satisfies the rules of evidence under Canadian law.

[159] The Charter application to exclude the Canadian-gathered evidence from the 2015 ROC is dismissed.

J. D. McCombs J.

RELEASED: September 1, 2016

[1] R.v. Viscomi, [2016] O.J. No. 1426, 2016 ONSC 1830; see also see Viscomi v. Ontario (Attorney General) (2014) 2014 ONSC 5148, O.J. No. 4124, at paras. 4-17, and see United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. No. 3448 (C.A.) at para. 9. [2] United States v. McAmmond, 2005 ONCA 20, [2005] O.J. No. 8 (C.A.), para. 16. [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. [5] Viscomi v. Ontario (Attorney General) (2014) 2014 ONSC 5148, O.J. No. 4124. [6] Viscomi v. Ontario (Attorney General) (2014) O.J. No. 5125 (C.A.) [7] Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.); United States of America v. Viscomi (2015) 123 O.R. (3d) 755 (SCJ). [8] United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. No. 3448 (C.A.) [9] Viscomi’s Application for Leave to Appeal the Court of Appeal’s decision upholding the constitutional validity ruling of Code J. was dismissed by the Supreme Court of Canada on December 17, 2015: Marco Viscomi v. Attorney General of Canada, Attorney General of Ontario, [2015] S.C.C.A. No. 397 [10] United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. No. 3448 (C.A.), at para. 19. [11] United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. No. 3448 (C.A.) at para. 36. [12] United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. No. 3448 (C.A.) at para. 43. [13] 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.” [14] 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. [15] Anekwu, supra, para. 29. [16] Anekwu, supra, para. 29. [17] Anekwu, supra, para. 29. [18] United States of America v. Viscomi 2016 ONSC 1830, [2016] O.J. No. 1426 (Ont. S. C.), paras. 57 - 62. [19] United States of America v. Viscomi 2016 ONSC 1830, [2016] O.J. No. 1426 (Ont. S. C.), paras. 69-81. [20] United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. No. 3448 (C.A.), at para. 4. [21] R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321. [22] R. v. Spencer, 2014 SCC 43. [23] ITO, Form 1, Application Record, Tab 9; this information was not part of the 2012 ROC [24] ITO, Appendix A, Application Record, Tab 9 [25] ITO, Appendix C, at para 2, Application Record, Tab 9; this information was not part of the 2012 ROC [26] ITO, Appendix C, paras 5-11, Application Record, Tab 9; this information was not part of the 2012 ROC [27] ITO, Appendix C, para 26, Application Record, Tab 9 [28] ITO, Appendix C at paras 33, 37-41, 58; Application Record, Tab 9; this was not part of the 2012 ROC [29] ITO, Appendix C at para 53, Application Record, Tab 9 [30] Warrant to Search the dwelling-house of Mark Viscomi at 17 Elia Drive, March 21, 2012, Application Record, Tab 10 [31] R. v. Viscomi 2015 ONCA 484, [2015] O.J. No. 3448 (C.A.) at para. 20: “In short, the judge must be satisfied that there is some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty”: United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080. [32] R. v. Ward, 2012 ONCA 660, at para. 111 per. Doherty J.A.; R v Debot, [1989] 2 SCR 1140 at para 47 per Wilson J. [33] Viscomi, supra, at para. 32 [34] Applicant’s Application Record, Vol. 2, Tab 17. [35] Applicant’s Application Record, Vol. 2, Tab 18 [36] Applicant’s Application Record, Vol. 2, Tab 16 [37] R. v. Plaha, [2004] O.J. No. 3494 (C.A.), per Doherty J.A. at para. 45. [38] R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32 [39] R. v. Vu, [2013] 3 S.C.R., paras. 1 & 2. [40] Second ITO, Appendix C, paras 53-56, pages 35-37, Application Record, Tab 11. [41] R. v. Little 2009 ONSC 41212, [2009] O.J. No. 3278 (SC). [42] Little, supra, at para. 155. [43] This approach has been taken by other courts. See, for example, R. v. Nurse, 2014 ONSC 1779, [2014] O.J. No. 5004 (SC), per. Coroza J. at para. 51; see also R. v. Marek, 2016 ABQB 18 per Moreau J at paras. 6-8. [44] R. v. Araujo [2000] S.C.J., para. 46. [45] Araujo, supra, paras. 46 & 47; R. v. Morelli, [2010], para 58. [46] See Applicant’s factum, para. 30. [47] Application Record, Vol. 2, tab 24. [48] Transcript of August 10 proceedings, Application Record, Tab 23. [49] August 10 ITO, Application Record, pages 44-48. [50] S. 490(1) Detention Order, Application Record, Volume 1, Tab 16. [51] Transcript of testimony of Darryl Hawke before Benotto J. on August 15, 2012, p. 26, l. 20-30, Attorney General of Canada’s Responding Record, Tab 1. [52] Viscomi v. Ontario (Attorney General) (2014) 2014 ONSC 5148, O.J. No. 4124 [53] Viscomi v. Ontario (Attorney General 2014 ONCA 765, [2014] O.J. No. 5175 (C.A.). [54] United States of America v. Anekwu 2009 SCC 41, [2009] 3 S.C.R. 3, para. 29 (per Charron J.) [55] Grant, supra, at para. 68.