COURT FILE NO.: E90/12 DATE: 2016-09-08 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Adrienne Rice, for the Respondent Respondent on Motion (Applicant/Requesting State)
- and -
YVETTE MATHURIN Boris Bytensky, for the Applicant Applicant on Motion (Respondent/Person Sought for Extradition)
HEARD: April 15, 2016, at Toronto, Ontario Michael G. Quigley J.
Reasons For Ruling
Re: Reconsideration Hearing
Overview and Procedural Background
[1] The United States of America has been asking Canada to extradict Ms. Yvette Mathurin for the last five years. It alleges that Ms. Mathurin posed as a bank employee as part of a scheme to defraud lawyers through a “debt collection scam.” The perpetrators of that scam caused at least 80 victims to suffer losses totaling some $32 million.
[2] Potential clients seeking assistance with the collection of a debt would contact a law firm. The firm would then agree to be retained. In this case, the law firm was then contacted by a person representing the debtor, who agreed to pay the outstanding debt. Payment by cheque was mailed to the law firm. The law firm then contacted a person at a phone number provided on the cheque. That person was represented to be a bank employee and their role was to advise the law firm that the cheques were valid, when they were not. The law firm then deposited the cheque into its trust account and wired the funds to its alleged client's account in payment of the debt.
[3] The fraud was uncovered when the cheques started to be returned as counterfeit by the bank. Both the law firms and the banks that honoured the counterfeit cheques incurred losses. The U.S. alleges Ms. Mathurin was the person who posed as the bank employee and who provided the reassurance to the United States law firms that the cheques that they had received were valid, knowing they were not. [^1]
[4] The U.S. relies on a certified record of the case (ROC) and three supplemental records (SROC) [^2] to support its request for Ms. Mathurin’s extradition. The Minister of Justice issued an Authority to Proceed (ATP) on November 28, 2011 seeking her committal for the Canadian offence of fraud [^3]. Justice Kelly issued a warrant for her arrest on May 16, 2012 and she was arrested the following day and then granted judicial interim release.
[5] On October 3, 2012, Ms. Mathurin applied for disclosure of the Canadian sourced investigative materials on the basis that her Charter rights had been breached. I heard that application over two days in December 2012 and released my decision refusing the application on April 30, 2013. [^4] Ms. Mathurin’s committal hearing proceeded before me several months later in July 2013. I ordered her committal for extradition to the United States on September 23, 2013 [^5] and the Minister of Justice ordered her to be surrendered to the American authorities that December. However, Ms. Mathurin did not surrender. Instead, she appealed both the Disclosure Decision and the Committal Decision. That appeal was heard in December 2014.
[6] On August 26, 2015, the Court of Appeal upheld my rulings (i) that the evidence sharing that occurred with the American authorities did not contravene Ms. Mathurin’s Charter rights; (ii) that the Search Warrant and the Production Order were lawfully obtained; and (iii) they declined to interfere in my decision not to grant disclosure, except for in one limited respect that arose from a change of law since my ruling was released on the disclosure motion. That change of law arose from the Court of Appeal decision in R. v. Garcia-Machado [^6].
[7] The Court of Appeal explicitly outlined the very limited basis upon which it was remitting the matter back to me for reconsideration at paragraphs 48-50 of its decision: [^7]
[48] The extradition judge followed the line of authority which held that there is no automatic breach of an individual’s Charter rights where an unlawful detention of seized items occurs after an initially valid search.
[49] In light of the decision in R. v. Garcia-Machado, the law has now been clarified. I would refer the matter back to the extradition judge to reconsider, on the facts of this case, the effect of the failure to report on the request for disclosure, applying the law as now clarified.
G. CONCLUSION
[50] The information and evidence acquired by the Canadian investigators was legally obtained under the Criminal Code. There was no obligation for Canadian authorities to proceed under, and comply with, the MLACMA [^8]. The extradition judge will determine the effect of the failure to report to an issuing justice in compliance with s. 489.1.
[8] Consequently, Ms. Mathurin’s appeal was allowed in part and this matter was referred back to me as the extradition judge on this very limited basis for reconsideration of the effect of the failure of the police authorities to report back to the warrant issuing justice under section 489.1 of the Criminal Code. In these reasons, having reconsidered that question and its effect on my earlier decision, I explain why my decision remains the same and I re-affirm my denial of Ms. Mathurin’s disclosure request and her committal for extradition to the United States.
Issues and Position of the Parties
[9] Ms. Mathurin’s counsel seeks to broaden the issues beyond the particular question referred back to me by the Court of Appeal. Once again, he has renewed the original general request for disclosure previously made, albeit on a somewhat more confined basis. However, even the modified request he now makes for disclosure is extensive, consisting of the following:
(i) Copies of all materials obtained pursuant to the s. 487.012 “Production Order”, or at the very least, a detailed itemized list of all such items that were obtained, together with a summary of the contents of each such item;
(ii) Copies of all materials obtained pursuant to the 57 Dennison Avenue “Search Warrant”, or at the very least, a detailed itemized list of all such items that were obtained, together with a summary of the contents of each such item;
(iii) To the extent that the Requesting State seeks to rely on the observations of Det. Allan Spratt regarding the materials seized during the search (rather than the documents themselves), copies of all his notes, reports, correspondence, emails, briefing notes or other materials reduced to writing (collectively, the “Notes”) that relate to the search (including his briefing and instructions relating to the same) or to any of the materials obtained during the search, or that disclose what Det. Spratt did or was instructed to do with the documents and other fruits of the search after they came into his possession;
(iv) If any other officer (other than Det. Spratt) was involved in the execution of the Search Warrant, their Notes relating to the above;
(v) If any other officer (in Canada) received the materials from the search from Det. Spratt prior to their delivery to the United States investigators, then their Notes are also sought; and finally
(vi) An Order requiring Cpl. Leining and Det. Spratt to attend to give viva voce evidence and to be cross-examined on the pending Charter Application that he would now bring anew and at the re-visitation of the Extradition Hearing that he claims must necessarily follow.
[10] The Attorney General frames the issue here in a much more limited manner. Counsel emphasizes that I was ordered to reconsider only one distinct question, with (i) the balance of the appeal dismissed, (ii) the prior discretionary decision to deny disclosure upheld, and (iii) the committal upheld. Counsel for the Attorney General states that the discretionary decision to deny Ms. Mathurin’s request for further disclosure remains sound.
[11] In her submission, the decision in R. v. Garcia-Machado does not limit my discretion as the extradition judge to deny a request for disclosure beyond the record of the case. What it does do is posit a potential Charter or due process violation owing to the failure of the police to report to the warrant issuing justice as required by s. 489.1. As a result, what R. v. Garcia-Machado changes, in the Attorney General’s submission, is simply to create at least an “air of reality” to a Charter violation as a result of that appeal decision, an “air of reality” I found to have been absent on the initial hearing.
[12] The question is not whether the entire matter should be reopened, and nothing in the Court of Appeal’s reasons can reasonably be interpreted to call for that result. Rather, the question is what would be the appropriate remedy for that alleged Charter breach? More importantly, given that the evidence that was gathered in Canada under the Criminal Code production order and search warrant is not necessary for committal, she argues nothing is gained by any further or fuller disclosure related to the failure to report to a justice under s. 489.1 because the “air of reality” Charter breach inherent in that failure to report would not require that such disclosure be made. Thus it should not be ordered.
[13] Counsel for the Attorney General continues to maintain, in any event, that Ms. Mathurin has still not met the test for further disclosure. She has not demonstrated that the failure to file reports to a justice under s. 489.1 could support exclusion of the Canadian-gathered evidence, nor has she shown how further disclosure is relevant to a Charter violation associated with that failure.
Analysis
[14] It is important to remain focused on the context within which this reconsideration hearing takes place. The Court of Appeal concluded that the information and evidence acquired by the Canadian investigators was legally obtained under the Criminal Code and that there was no obligation for Canadian authorities to proceed under, and comply with, the MLACMA. The committal for extradition was upheld. I was simply asked to consider on the facts of this case, what effect the failure to report to an issuing justice in compliance with s. 489.1 would have had on my decision to deny the request for disclosure, applying the law as now clarified in R. v. Garcia-Machado.
[15] Before turning to that question, however, I would address several lines of argument advanced by applicant’s counsel on this hearing.
(i) The scope of this reconsideration hearing
[16] First, counsel for Ms. Mathurin states that regardless of what they said, the Court of Appeal was really sending this matter back for me to re-examine on the much broader basis he contends should apply here, including to re-open the disclosure motion request, and to call into question the committal and to require me to reconsider that as well, based on the assumption that he is granted the extensive disclosure he still seeks.
[17] I reject this line of argument for several reasons. The Court of Appeal upheld my exercise of discretion to refuse the broad disclosure sought by the applicant. They confirmed that Canadian investigators obtained the information and evidence they obtained in compliance with the legal requirements that governed. There was no requirement in the circumstances to comply with MLACMA.
[18] In my view, it is plain that the Court of Appeal was not asking me to re-open the disclosure request, but simply asking that I consider whether the failure to report creates an issue, whether it would have affected my decision now in light of Garcia-Machado’s clarification of the law on that single point, and if so, what remedy, if any, would be appropriate in the circumstances of this case.
[19] Moreover, and of importance to me on this point is that if there was uncertainty on the intended scope of this reconsideration request, uncertainty which is patently absent from the face of the Appeal Decision, it was open to the applicant and he could and should have asked the Court of Appeal for clarification of those issues before the matter was returned to me. The applicant did not do so, and consequently I see no basis, apart from the implications of any remedy that I may determine should arise out of that reconsideration, to broaden this inquiry.
(ii) Does United States v. Viscomi overrule Ms. Mathurin’s committal?
[20] The second argument advanced was that when it issued its ruling in this matter, and in upholding the committal, the Court of Appeal did not refer to the appeal in United States v. Viscomi [^9], for which the Court of Appeal released reasons on January 30, 2015. Counsel argues that in writing the reasons for the court in this matter, Justice Benotto and the other panel members were unaware of that case being decided at the same time. However, he claims that since I had relied upon Viscomi in part in reaching my initial decision on committal, that the reversal of that decision by a different panel of the Court of Appeal must necessarily overrule my committal decision, even though Benotto J.A. did not refer to that decision and specifically upheld the committal I ordered.
[21] Mr. Viscomi was sought by the U.S. for the offence of child luring alleged to have occurred through electronic communications via a Skype video call that enabled the person communicating with the female victim in the U.S. to see her on a webcam, but prevented her from seeing him. Using the victim’s computer, the American authorities traced the communications to a residential Internet Service Provider in Ontario and to an Internet Protocol address in Ontario. Their enquiry to the ISP elicited the subscriber information for this IP address, “Mark Viscomi”, with a residential address in Stouffville, and that the IP address had been assigned to this subscriber’s account during the period of the alleged offence. The American authorities also possessed a valid Ontario driver’s licence abstract, provided by the Ontario police, that a “Marco Viscomi” listed that same address as his residential address.
[22] The Court of Appeal found this evidence to be an insufficient basis to establish that Mr. Viscomi was the user of the IP address at the time that the offence allegedly occurred. The Court concluded that although a reasonable inference could be drawn that Mr. Viscomi was the subscriber to the IP address at the material time, the same could not be said respecting his use of the IP address.
[23] Turning to the circumstances of this case, however, as in the case of the first line or argument, once again there are several reasons why I reject the applicant’s position. First, dealing with the degree of comparison between the two cases, Ms. Mathurin’s link to the email account that is key to this case is much stronger than the circumstantial case rejected by the Court of Appeal in Viscomi. Here, the record contains evidence strongly supporting that Ms. Mathurin was the user of the yvette.mathurin@gmail.com account during the relevant period, including:
(i) the email from this account attaching a résumé in the name of Yvette Mathurin sent on August 9, 2009 to Jessica.leiva@ontario.ca. The résumé gives Yvette Mathurin’s address as 57 Denison Avenue, an address where Ms. Mathurin was observed during police surveillance and at which she was believed to reside based on her activities. The résumé also includes Yvette Mathurin’s email address as yvette.mathurin@gmail.com;
(ii) the email sent from this account on November 25, 2008 to Paula Harris and Anika Austrie and to which was attached photographs of a social event depicting three females, one of whom is Ms. Mathurin;
(iii) the identity of names between the email account and her own; and
(iv) Google records indicating that the account is registered to Ms. Mathurin and that the account was accessed via an IP address which belongs to Rogers Cable in Canada.
[24] The inferential bridge respecting the emails and Ms. Mathurin, which the Court of Appeal found could not be safely constructed in Viscomi, rests on much sturdier evidentiary pillars in this case.
[25] Equally important, in my view the members of the Court of Appeal should be presumed to have been aware of other cases engaging similar issues that were presently under reserve at the same time as the reasons were being prepared in this case. This is particularly so given the time frames within which these appeals were argued, and given that the reasons in Viscomi were released only six weeks after the release of Benotto J.A.’s reasons in this case.
[26] The mere fact that she did not refer to Viscomi in her reasons is not evidence that she was not aware of it. It is more likely a product of the different strengths of the evidential foundation for the issue to be considered in the two cases. While multiple issues were raised by counsel on this appeal [^10], there is no evidence that issue was raised by defence counsel in argument, so it is not surprising that it is not addressed in the court’s reasons.
[27] The only issue that counsel focused on was “whether disclosure of the Canadian investigation should have been ordered because there was an air of reality to the appellant’s Charter claims.” [^11] Given the important factual distinctions between the two cases and the focus of counsel’s argument on the appeal, I reject his claim that Viscomi overrules my committal decision or that the committal decision should be looked at anew in light of that decision.
(iii) Is U.S.A. v. Anekwu relevant to this reconsideration?
[28] There is a third argument advanced by Ms. Mathurin based on U.S.A. v. Anekwu [^12] that the two Canadian investigators, Cpl. Leining of the RCMP and Detective Spratt of the Toronto Police Service, ought to be compelled to attend at a new hearing to give testimony and be cross-examined relative to their practices and training in making returns of warrants to the issuing justice, and to determine the admissibility of their observations given counsel’s contention that they amount to inadmissible hearsay. However, my consideration of that contention will have better context and my conclusion on it will be better understood if I address that issue after turning to the focal issue in this reconsideration hearing, that is, whether the change in law following Garcia-Machado affects my conclusions relative to the issue of an alleged s. 8 Charter breach, and if so, the appropriate remedy that may arise from such a finding.
(iv) What is the effect of R. v. Garcia-Machado on this Charter breach claim?
[29] To frame the principal question correctly, it is helpful to recount my initial findings on the issue of the failure to return a report to the warrant issuing justice after the warrant to search Ms. Mathurin’s home and the Production Order to access her email account records were granted. At paragraphs 78-92 of the Disclosure Decision, I considered whether the failure to report to the warrant and Production Order issuing Justice after their execution tainted the legality of those evidence gathering orders under sections 487.012 and 487 of the Criminal Code.
[30] Counsel for Ms. Mathurin took the position that there was an “air of reality” to her Charter breach claim because a failure to make a report to the issuing justice after execution of the evidence gathering orders necessarily, in his submission, caused them to become retroactively invalid and unlawful even if they were initially legally obtained, and even if they were executed in compliance with the law: see R. v. Backhouse [^13], R. v. Correia [^14], R. v. Guiller [^15]. He claimed that air of reality would cause the initial search and seizure to be rendered unlawful as a result.
[31] I disagreed with that position. I found that the circumstances in those cases were different and followed the other line of authority that held that a failure to file a return related to the items seized does not necessarily render an initial lawful seizure unreasonable or cause it to become unconstitutional: R. v. Backhouse [^16], R. v. Poulin [^17], R. v. Pringle [^18] from this province, and R. v. Tripp [^19] and R. v. Karim [^20] from other provinces. These cases generally stood for the proposition that a valid warrant and search could not be invalidated by any conduct subsequent to the issuance of the warrant.
[32] While there were those two distinct lines of authority at that time, R. v. Garcia-Machado now clarifies the law on that point. That case was heard after this appeal was argued. As Benotto J.A. observes at para. 5 of the Appeal Decision, one of the issues there was whether the failure to file a timely report to the warrant issuing justice under s. 489.1(1) constituted a breach of s. 8 of the Charter. That decision was released on August 7, 2015 and is reported at 2015 ONCA 569.
[33] The court concluded that failure to file the required report violated s. 8 of the Charter, but even though that breach was found, in that case the s. 24(2) Charter analysis did not cause the evidentiary product of that illegal search to be excluded. So while Benotto J.A. was unprepared to intervene in my discretion not to order disclosure, she referred the matter back to me to consider the effect of the failure to report that occurred in this case, just as such a failure occurred in that case.
[34] In spite of the clarification of the law on that point, I note that it was equally important to my initial conclusion relative to this issue that the ROC in this case certified that none of the evidence that was obtained and produced in response to the Production Order or seized upon the execution of the Search Warrant formed any part of the American case for prosecution against Ms. Mathurin. [^21]
[35] Since the prosecution was not relying upon any of the items that were seized pursuant to the Canadian evidence gathering orders, and given my conclusion that the searches were conducted and the Production Order evidence was obtained under lawful authority, properly issued, I found the reasoning in the second line of cases to be more persuasive. At paragraph 92, I concluded in part as follows:
[92] That is not to say that there might not be other circumstances where the earlier line would prevail. However, I do not find any of the factors in the earlier line present in this case which would cause its line of reasoning to be applicable here. I agree with the Attorney General that the failure to file a report to the justice under the provisions of the Code to deal with the detention of items that were taken from the applicant should not retroactively invalidate the initial authority of the Canadian officers to conduct the initial search and seizure. The items were obtained in the course of lawful search and seizures and are not relied upon in any way in her prosecution. (my emphasis)
[36] It is well settled law that a person sought for extradition is entitled to be provided with only the ROC (and SROCs, if applicable) that have been tendered in support of the extradition request. However, an applicant who seeks additional disclosure can be provided with further disclosure, as an exception to the general rule, if the applicant can demonstrate that there is an “air of reality” to a justiciable Charter rights infringement claim in relation to the extradition hearing.
[37] U.S.A. v. Dynar [^22] and other appellate jurisprudence [^23] has forcefully resisted disclosure to the extent sought by Ms. Mathurin in this case. Dynar confirms [^24] that the person whose extradition is sought is ordinarily entitled to no disclosure beyond the evidence that the other state relies upon to establish its prima facie case for the extradition request. That is the information to be found in the certified ROC. Broader disclosure is not required on an extradition hearing where the guilt or innocence of the person sought is not at stake.
[38] Nevertheless, further disclosure may be permitted in very limited circumstances to establish a factual basis for a Charter challenge when it is expedient to do so and when there is at least an air of reality to the Charter claims being advanced. [^25] In Ontario, applying the “air of reality” principle from Kwok, the Court of Appeal has established a three-part test for obtaining additional disclosure in extradition proceedings. In U.S.A. v. Larosa [^26], Justice Doherty stated the test as follows:
In my view, before ordering the production of documents and compelling testimony in support of allegations of state misconduct, this Court should be satisfied that the following three criteria have been met by the application:
- the allegations 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 documents sought in the testimony sought would be relevant to the allegations.
[39] In order to satisfy that test there must be is a realistic possibility that if the orders requested are made, the allegations advanced by the applicant will be substantiated. It is not satisfied by mere assertions that the disclosure, if produced, will assist in determining the issue sought to be raised. Meeting the air of reality test calls for the presence of an evidentiary foundation or the advancement of proof by reference to the ROC, or to affidavit evidence tendered in support of the motion for disclosure, sufficient to substantiate the claims that underlie the request for further disclosure.
[40] Doherty J.A. observed that the first criterion is “self-evident” and requires the court to consider whether a remedy is even possible. He emphasizes, that “there is no point in engaging in a lengthy evidentiary inquiry where it cannot in law yield the result sought by the appellant.” [^27] Thus, even establishing an “air of reality” to a Charter breach does not automatically trigger an applicant’s entitlement to further disclosure. [^28] In, R. v. McAmmond, Blair J.A. referred to the Supreme Court of Canada’s caution in Dynar at para.125 that:
Even where there is sufficient involvement of Canadian authorities in the proceedings to justify applying the Charter, courts must proceed with caution. It has been observed that "judicial intervention must be limited to cases of real substance" [citation omitted] To do otherwise might all too easily place Canada in a position of violating its international obligations. [^29] [Emphasis of Blair J.A.]
[41] Moreover, Blair J.A. noted that the basis for disclosure will be even more attenuated in cases like this, where it relates to disclosure of material that is not being relied upon in the extradition process. It is important here to remember that the justices in the Appeal Decision reaffirmed the discretionary nature of the judge’s discretion to order disclosure against the background of the three tests mandated by Larosa. These are the guiding principles that apply in determining, even if there is an “air of reality” to the claimed Charter breach, whether Ms. Mathurin is entitled to receive additional disclosure.
[42] Counsel for Ms. Mathurin correctly notes that section 32(2) of the Extradition Act requires that evidence gathered in Canada “must satisfy the rules of evidence under Canadian Law in order to be admitted.” As confirmed in Anekwu [^30], evidence that is gathered in Canada may become inadmissible in an extradition proceeding, even if contained in the ROC; if it was obtained in violation of Canadian rules of evidence and the subject’s rights under the Charter. The extradition judge has power to exclude such evidence pursuant to section 24(2) of the Charter. Canadian gathered evidence summarized in the ROC is admissible if that same evidence could be given in oral testimony by the person whose evidence is summarized in written form. By corollary, Canadian gathered evidence summarized in the ROC that is substantively hearsay is still inadmissible. Merely placing substantive hearsay into the ROC does not insulate it from the exclusion that is mandated by section 32(2) of the Extradition Act.
[43] However, contrary to the Ms. Mathurin’s submissions that seek to address questions beyond those referred back by the Court of Appeal in the Appeal Decision, this reconsideration is confined to the effect of the failure to report on the request for disclosure, applying the law as clarified by the decision in Garcia-Machado. [^31] It does not extend to consideration of hearsay issues raised in U.S.A. v. Anekwu [^32] that were fully explored at the extradition hearing and dismissed by the Court of Appeal, nor does it extend to a right to challenge the obtaining of the Search Warrant or the execution of the search.
[44] The evidence contained in the ROC and SROCs demonstrates that Ms. Mathurin was knowingly involved in a fraudulent scheme in which, posing as a bank employee, she assured lawyers via telephone that cheques purporting to be payment for outstanding debts were authentic. The lawyers induced by this misrepresentation acted on the cheques to their detriment. There are multiple connectors in the ROC in the form of emails from and to the yvette.mathurin@gmail.com account that tie the user of this account to the lawyers’ phone calls and the fraud [^33], and Ms. Mathurin’s link to the email account is much stronger than the circumstantial case rejected by the Court of Appeal in Viscomi. [^34] None of that evidence was gathered pursuant to the Production Order or Search Warrant, and it remains sufficient to establish Ms. Mathurin’s connection to the fraudulent scheme, without relying on the evidence [^35] seized pursuant to the judicially authorized searches in Canada.
[45] Accepting that an “air of reality” has been established for the failure to file reports to a justice to constitute a breach of s.8 of the Charter, in my view, such a breach would not support the exclusion of the evidence obtained pursuant to the Canadian production order and search warrant under s.24(2) of the Charter.
[46] On an application for exclusion of evidence under s. 24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:
(i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the person; and (iii) society’s interest in the adjudication of the case on its merits. [^36]
[47] The Grant analysis performed by the Court of Appeal in Garcia-Machado is instructive. That case involved a delay in filing a report to a justice after the seizure of a blood sample and hospital records. The trial judge had found that the officer’s failure to comply with s.489.1 was “symptomatic of an institutional and systemic problem” which weighed heavily in favour of exclusion. [^37] Despite the trial judge’s finding on this point, the Court of Appeal concluded that the trial judge had failed to consider relevant factors that militated against exclusion of the evidence. [^38]
[48] The factors germane to the Court of Appeal decision in Garcia-Machado are present in this case and they favour a similar result under a Grant analysis. [^39] They are:
(i) The seizure of the subscriber information and the search conducted at Ms. Mathurin’s residence both proceeded pursuant to court order. At that time, the law did not require judicial authorization for the subscriber information. Moreover, it was not stipulated in the Production Order that the officer was to comply with s. 489.1 of the Criminal Code. [^40] (ii) An assessment of Ms. Mathurin’s reasonable expectation of privacy in the items seized is to be conducted at the time of the breach, that is, when the reporting period has lapsed. Given that the items had already been lawfully seized, her privacy interest in the items at the time of breach was greatly diminished. (iii) The property seized was authorized by the warrants and is being used for the reason it was obtained; as evidence related to the commission of the offence of fraud. [^41] (iv) The Production Order required disclosure of the subscriber information provided by Rogers Cable. [^42] (v) The items seized on the execution of the Search Warrant at Ms. Mathurin’s residence fell within the ambit of the warrant. [^43] They included a dress, six cellphones, four computers, a Rogers Communications payment notice and her St. Lucia passport. (vi) The evidence seized would inevitably have been detained under s. 490 of the Code had the officer complied with s.489.1. The police required the subscriber information to assist in determining the identity of an individual suspected to be engaging in a fraud. [^44] Likewise, the evidence seized under the Search Warrant was required to establish Ms. Mathurin’s residence at the location associated to the subscriber information and to further the investigation of the fraud, which was being conducted via computers and telephones. [^45] (vii) The officers would have been able to make copies of the subscriber information pursuant to s. 490(13).
[49] In my view, these factors show that the Grant analysis should not result in the exclusion of the evidence under s. 24(2). They demonstrate that Ms. Mathurin’s Charter-protected interests were only minimally impaired by the officers’ failure to comply with s. 489.1. Additionally, and more importantly, the American authorities have certified that they are not relying in Ms. Mathurin’s prosecution on the evidence that was seized under those then lawful authorities. [^46] As for the seriousness of the Charter-infringing state conduct, at the time the judicial authorizations were issued, the state of the law was in doubt, and was only recently clarified in Garcia-Machado. As such there is no “air of reality” to the claim that the officer acted in bad faith in not filing the reports to the Justice.
[50] Looking at the third of the tests under Grant, society plainly has a strong interest in seeing Ms. Mathurin extradited to face the charges against her in the United States, particularly given that extradition proceedings are a means by which Canada honours its international obligations and the principles of comity. [^47] The evidence seized is reliable evidence that will assist the American prosecution to establish the identity of an individual allegedly involved in a cross-border fraud targeting American victims.
Conclusion
[51] Ms. Mathurin claims that the bulk of the evidence referenced in the ROC was gathered in Canada through, amongst other things, the execution of the Search Warrant and the Production Order and she claims that those materials are being relied upon by the United States for the purpose of seeking her extradition without her having adequate disclosure of the contents, and in circumstances where she says it is plain that those materials were disclosed by the Canadian authorities to the U.S. authorities.
[52] However, the certification in the ROC shows, to the contrary, that none of that evidence is being relied upon by the United States. The evidence gathered in Canada under judicial authorization was not necessary for committal.
[53] Ms. Mathurin has not shown how further disclosure is relevant to a Charter violation associated with the failure to file reports to a justice. No further documentation or testimony from officers involved in securing the authorizations is required to show non-compliance with s. 489.1. Although the Supreme Court in Anekwu does leave open the possibility that in exceptional circumstances the attendance of a witness may be required, it emphasizes that there is no general right to cross‑examine witnesses in the extradition context. Ms. Mathurin’s reliance on the recent Disclosure Decision in Viscomi to argue for further disclosure is also not tenable.
[54] This matter was remitted to me to determine a narrow issue – the impact on the Disclosure Decision of the failure to file reports to a justice. There is no ground for that request to be interpreted as a vehicle to attack the Canadian searches on bases for which no alleged Charter violation, let alone an “air of reality” to a Charter violation, has been raised or on bases that have been dismissed as meritless. [^48]
[55] I find that the discretionary decision to deny Ms. Mathurin’s request for further disclosure remains the correct one in the circumstances of this case. Apart from the fact that no Canadian gathered evidence is relied upon to support this extradition, Ms. Mathurin has not satisfied me that non-compliance with s. 489.1(1) can or should support exclusion of the Canadian-gathered evidence or how further disclosure is relevant to that non-compliance.
[56] In any event, even assuming the evidence gathered in Canada breached her Charter rights based on the failure of the officers to report to the justice under s. 489.1(1) of the Code, I would not rule that evidence inadmissible under the s. 24(2) analysis mandated by Grant.
[57] For the preceding reasons, I find that the failure to file reports to a justice under s. 489.1(1) of the Code has no impact on the result in the Disclosure Decision, and the matter should be remitted back to the Court of Appeal having regard to that finding.
Michael G. Quigley J. Released: September 8, 2016
Footnotes
[^1]: Disclosure Decision, para 9; Committal Decision, paras 7-8; ROC, para 2. [^2]: The Record of the Case and certification, dated August 31, 2011 (ROC), was included at Tab 3 of the Reconsideration Hearing Record; the Supplemental Record of the Case and certification, dated November 9, 2011 (1st SROC), is included at Tab 4 of the Reconsideration Hearing Record; the Second Supplemental Record of the Case and certification, dated October 2, 2012 (2nd SROC), is included at Tab 5 of the Reconsideration Hearing Record; and the Third Supplemental Record of the Case and certification, dated November 8, 2012 (3rd SROC), is included at Tab 6 of the Reconsideration Hearing Record. [^3]: The ATP is included at Tab 2 of the Reconsideration Hearing Record. [^4]: United States of America v Mathurin, 2013 ONSC 2575 (the “Disclosure Decision”). [^5]: United States of America v Mathurin, 2013 ONSC 5810 (the “Committal Decision”). [^6]: 2015 ONCA 569. [^7]: United States of America v Mathurin, 2015 ONCA 581, 328 CCC (3d) 85 (the “Appeal Decision”) is included at Tab 9 of the Reconsideration Hearing Record; See paras 5, 40, 48-51 for the appeal Court’s direction respecting the scope of the reconsideration; R v Garcia-Machado, 2015 ONCA 569, 126 OR (3d) 737. [^8]: The Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.). [^9]: United States of America v Viscomi, 2015 ONCA 484, 325 CCC (3d) 544 at paras 4-8, 11-36. Mr. Viscomi was discharged by the Court of Appeal. He is currently facing a second request for extradition based on different evidence, see United States of America v Viscomi, 2016 ONSC 1830, 2016 CarswellOnt 4168. [^10]: Mathurin, above, at para 37. [^11]: Ibid. [^12]: 2009 SCC 41, [2009] 3 S.C.R. 3, 247 C.C.C. (3d) 99, 310 D.L.R. (4th) 1. [^13]:, [2005] O.J. No.754 (C.A.) at para. 115. [^14]: 2005 ONCJ 435, [2005] O.J. No. 4722 (Ct. J.) at paras. 51-53. [^15]: [1985] O.J. No. 2442 (Dist. Ct.) at paras. 60-63 [^16]: See note 13, above. [^17]: [2004] O.J. No. 1354 (Sup.Ct.J.) at para 101-105. [^18]: 2004 ONCJ 229, [2004] O.J. No. 4156 (Sup.Ct.J.) at para 10. [^19]: 2006 NBPC 35, at paras 25-39 and particularly at paragraph 37-38 [^20]: 2012 CarswellAlta 1296 at para 169. [^21]: See the Certification of the case and the 3rd SROC. [^22]:, [1997] 2 S.C.R. 462. [^23]: U.S.A. v. Kwok, at paras. 97-101. [^24]: At paras. 128, 130, 134 and 144. [^25]: See Kwok, above, at para. 100. [^26]: (2002), 166 C.C.C. (3d) 449, (Ont.C.A.) at para. 76. [^27]: Ibid., at para. 77. [^28]: at paragraph 31 [^29]: McAmmond, above, at paras. 21 and 31. [^30]: Anekwu, above, at paras. 21, 23 and 30; U.S.A. v. Kwok, above, at paras.100-102 U.S.A. v. McDowell, [2004] O.J. No 1190 (C.A.) at paras. 22-23 [^31]: Appeal Decision, at paras 5, 40, 49. [^32]: U.S.A. v. Anekwu, note 12, above. [^33]: Committal Decision, above, at paras 46-48. [^34]: R. v. Viscomi, above. [^35]: The evidence that is not necessary includes the anticipated testimony of Detective Spratt set out in the 3rd SROC. [^36]: R v Grant, 2009 SCC 32 at para 71, [2009] 2 SCR 353. [^37]: Garcia-Machado, supra note 5 at para 29. [^38]: Ibid, paras 58-69. [^39]: See also R v Elez, 2015 ONSC 7727 at para 16, 127 WCB (2d) 123. [^40]: See Garcia-Machado, para 6 & Production Order, Tab 11, p 4. [^41]: The Canadian offences listed in the Production Order, see Tab 11, p 2, and Search Warrant, see Tab 12, p 4, include possession of proceeds of crime and conspiracy to commit the predicate offences. [^42]: ROC, para 11; 2nd SROC, para 3 & Production Order, Tab 11, p 2. [^43]: ROC, para 16 & Search Warrant, Tab 12, pp 1-4. [^44]: Information to Obtain a Production Order, Tab 11, p 2. [^45]: Information to Obtain Search Warrant, Tab 12, pp 1, 2, 3, 6-8, 18-20. [^46]: See 3rd SROC. [^47]: See Dynar, supra note 27 at paras 129-131. [^48]: See Applicant’s submissions, paras 18-19. No allegation has previously been made respecting the manner in which the searches were executed. On the other hand, the sharing of the information with American authorities was extensively considered, and argument respecting a violation was not sustained.