CITATION: R. v. Viscomi 2016 ONSC 6658

Court File No. M125/15 DATE: 20161025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

– and –

MARCO VISCOMI

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

Julianna Greenspan and Brad Greenshields for Marco Viscomi, Applicant

Heard: October 25, 2016

Ruling: October 25, 2016

J.D. McCOMBS J.

REASONS FOR JUDGMENT GRANTING EXTRADITION APPLICATION

[1] Earlier today, I issued an Order of Committal under s. 29 of the Extradition Act. I indicated that I would provide brief reasons for my decision as soon as possible. These are those reasons.

[2] 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.

[3] The child victims, referred to here as Jane Doe #1 and Jane Doe #2, were in their home in Virginia Beach.

[4] Marco Viscomi is accused of committing the crimes in Canada while using his laptop computer.

[5] The evidence against Mr. Viscomi was gathered by both American and Canadian authorities.

[6] This is the second application for extradition. The first application was based on an ROC that referred only to the American-gathered evidence. That application led to a committal order, but that order was quashed by the Ontario Court of Appeal[^1].

[7] The basis for the appeal court’s conclusion that the committal order could not stand was that the 2012 ROC contained insufficient information to permit the inference that Mr. Viscomi was the user of the IP address at the relevant time[^2].

[8] The Crown has brought a second application, this time relying on an ROC that contains the Canadian-gathered evidence as well as the American-gathered evidence.

[9] The ROC, in its final form, is before the court marked exhibit 3.

[10] In response to this second extradition application, Viscomi first brought a motion for further disclosure. That motion came before me and has been dismissed[^3].

[11] Viscomi then brought a Charter application for an order declaring that the Canadian-gathered evidence is not admissible under Canadian law. That application was also heard by me and has been dismissed[^4].

[12] The ROC before the court, incorporating the Canadian-gathered evidence as well as the American-gathered evidence, provides a solid basis for a reasonable inference that Mr. Viscomi was indeed the person who committed the crimes using his personal laptop computer by means of the IP address that was registered to him.

[13] The following excerpt from paragraph 71 of the Crown’s factum in support of the extradition application demonstrates the strength of the inference that Mr. Viscomi was the user of the IP address at the relevant time.

[14] Th[e] evidence includes the following:

• The chat session log and laptop computer belonging to Jane Doe #1 show the individual who had been communicating with the victims on the night of January 5/6, 2011 had a Skype screen name of “Jamie Paisley” and the account name of “jimbos939393”;
• The IP address associated with the user name “Jamie Paisley” and the account name “jimbos939393” at this time was 24.138.105.47;
• The subscriber assigned to IP address 24.138.105.47 used between December 6, 2011 and January 20, 2012 was Mark Viscomi, 17 Elia Drive, Stouffville, Ontario, L4A 7X5. This was a static IP address, meaning it did not change over time, and the IP address was assigned exclusively to the residence at 17 Elia Drive, Stouffville, Ontario through a hardwired, dedicated line;
• Marco Viscomi’s driver’s license lists his home address as 17 Elia Drive, Stouffville, Ontario, L4A 7X5.
• During the execution of the warrant at 17 Elia Drive, Mr. Viscomi’s sister told OPP officers that he had moved out of 17 Elia Drive a few days earlier and moved to 150 Grand Avenue West, Chatham-Kent, Ontario.
• The computers seized from Viscomi’s Chatham-Kent residence included the following:
  • Six thumbnail images of Jane Doe 1 and Jane Doe 2. In three of the images either or both Jane Doe 1 and Jane Doe 2 are topless exposing their breasts facing the camera just as “Jamie Paisley” had instructed them to do during the Skype chat. Jane Doe 1 and Jane Doe 2 can identify the scene as the one that occurred on January 5-6 2012.
  • Documents in his name including a driver’s licence, a medical indemnity card, school enrollment letter and a copy of his passport.
  • Numerous images of Viscomi in front of a webcam.
  • Videos of Viscomi and a woman who appears to be his girlfriend.

[15] S. 29(1)(a) of the Extradition Act provides:

s. 29 (1) A judge shall order the committal of the person into custody to await surrender if,

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner

[16] The provision requires a judge to order committal where there is some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. Where the evidence is circumstantial, the extradition judge must conduct a limited weighing exercise to ensure the circumstantial evidence is reasonably capable of supporting the inferences the prosecution seeks to have drawn[^5].

[17] I have denied Mr. Viscomi’s application for further disclosure and have dismissed his Charter application to exclude the Canadian-gathered evidence. In doing so, I have held that the Canadian-gathered evidence satisfies the rules of evidence under Canadian law.

[18] Ms. Greenspan, on behalf of Mr. Viscomi, elected not to make submissions on the issue of committal. She indicated that in light of my rulings on the disclosure motion and the Charter application, she would make no further submissions before this court.

[19] I am satisfied that the evidence contained in the ROC before the court supports the reasonable inference that the offences were committed by Marco Viscomi using his laptop computer at the IP address registered to him.

[20] In the result, I am satisfied that the case for committal is made out.

[21] Accordingly, I have ordered Mr. Viscomi committed for extradition to the United States of America pursuant to the Order of Committal placed before the court.

J. D. McCombs J.

RELEASED: October 25, 2016

[^1]: United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. 3448 (C.A.) [^2]: United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. 3448 (C.A.), at paras. 17, 18 & 32. [^3]: United States of America v. Viscomi, 2016 ONSC 1830, [2016] O.J. No. 1426 (Ont. S.C.) [^4]: United States of America v. Viscomi, [2016] O.J. No. 5423 (Ont. S.C.) [^5]: United States of America v. Viscomi, 2015 ONCA 484, [2015] O.J. 3448 (C.A.), at paras. 19 & 20.