Court File and Parties

Court File No.: CR-18-00000016-00MO Date: 2018-12-10 Ontario Superior Court of Justice

Between: THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA, Applicant – and – GREGORY HIBBERT, Respondent/Person Sought for Extradition

Counsel: Heather J. Graham, for the Applicant Leo Adler, for the Respondent/Person Sought for Extradition

Heard: 5 November 2018 at Kingston

Before: Mew J.

Reasons for Decision (Application for Summary Dismissal of an Application by a Person Sought for Extradition)

[1] The United States of America wants Gregory Hibbert to be extradited to Memphis, Tennessee to face prosecution of charges related to making child pornography.

[2] The principal ground upon which Mr. Hibbert resists extradition is his assertion that evidence upon which the American prosecution will be founded was obtained in Ontario in violation of his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

[3] According to the Attorney General, acting on behalf of the United States of America, Mr. Hibbert’s application is bound to fail for lack of jurisdiction and for lack of any basis in law and, consequently, the application should be summarily dismissed.

[4] For the reasons that follow, I do find that some of the relief sought by Mr. Hibbert is either beyond the jurisdiction of this court or simply unavailable to him as a matter of law. But I also find that there is more than an air of reality to Mr. Hibbert’s claim that evidence which now forms the basis for the proposed American prosecution was obtained in violation of his Charter rights. As such, his application as it relates to that issue should be allowed to proceed.

Background

[5] In July 2016, Mr. Hibbert was arrested in Kingston, initially on one charge of voyeurism.

[6] At the time of his arrest, Mr. Hibbert had been visiting a long-time friend in Kingston with whom he had, at one time, been briefly involved in romantically.

[7] The friend whom Mr. Hibbert was staying with in Kingston had a young child – a girl aged seven. One day, while Mr. Hibbert, his friend and her daughter were out, the child’s father stopped by the residence and during the course of doing so, used the bathroom. He noticed a waterproof clock radio hanging from a towel rack facing the toilet and shower. Thinking it odd, and examining the device further, the man noticed that two holes had been drilled in the casing, one of which harboured what appeared to be a lens. He subsequently dismantled the radio and found a camera hidden inside. He told his daughter’s mother about his discovery and together they searched out additional electronic devices. They then called the police and invited officers to enter the premises and handed over to them the equipment which they had found.

[8] A warrant was obtained to search the devices which had been handed over. A number of images were found, including recordings of the child in the family bathroom and her bedroom – bathing, dressing and undressing, and using the toilet.

[9] There were also a number of other images found. It was determined that some of these images were related to a visit Mr. Hibbert had made to friends in Bowmanville immediately before his visit to Kingston, where he had recorded an elementary school-aged girl and her younger brother taking their bedtime showers.

[10] The American charges relate to a visit which Mr. Hibbert had made to some friends in Memphis immediately before he visited the friends in Bowmanville.

[11] The search, during the course of the Canadian investigation, of Mr. Hibbert’s devices had also disclosed electronic images of child pornography involving the young child of the friends who he had stayed with in Tennessee. The Kingston police shared these images with U.S. investigating authorities and this ultimately led to the parents of the Tennessee child confirming that the images were of their child.

[12] In accordance with the usual practice in extradition cases, the American authorities have prepared a record of the case (“ROC”) which consists of the anticipated testimony of witnesses in the event that the American prosecution proceeds and a certification by an American prosecutor that the evidence summarised in the ROC is available for trial and sufficient under the laws of the United States to justify prosecution. The witnesses will describe the images of child pornography that they have viewed and will ascribe those images to Mr. Hibbert. The Attorney General notes that the ROC contains no statement of reliance on any physical evidence and asserts that the witness testimony presents a sufficient prima facie case for committal for extradition.

[13] Before turning to the relief sought and the other applicable provisions, there is, however, one other important feature.

[14] Mr. Hibbert pleaded guilty in earlier proceedings to two counts of voyeurism, one count of making child pornography and one count of accessing child pornography. These charges arose from events that took place in Ontario, and, specifically, in connection with Mr. Hibbert’s visits to Bowmanville and Kingston. However, to the extent that those charges were based on images that had been retrieved from the devices that were turned over to the Kingston police and subsequently examined pursuant to a warrant, no challenge to the legality of the seizure and search of those devices was advanced by Mr. Hibbert in the Canadian proceedings.

[15] On 17 November 2017, an Authority to Proceed was issued on behalf of the Minister of Justice authorising the Attorney General to proceed to seek an order for Mr. Hibbert’s committal for the offence of making child pornography contrary to s. 163.1(2) of the Criminal Code. Mr. Hibbert was thereafter arrested on 27 February 2018, pursuant to a warrant issued under the Extradition Act. At the time of his arrest, he was in custody, serving a three year sentence imposed following his guilty plea and conviction in Canada on 30 August 2017 on the previously referenced charges.

Relief Sought

[16] In his application, Mr. Hibbert seeks orders:

1. That the “informal” sharing of evidence of his conduct in Canada, in the circumstances of this case, is illegal and improper and contrary to the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 and conflicts with both the Extradition Act, S.C. 1999, c. 18 and the Canada United States Extradition Treaties;
2. That such “informal” sharing of evidence – with the intent of using such Canadian gathered evidence in the United States by American officials for the sole purpose of prosecuting Mr. Hibbert – is a breach of Mr. Hibbert’s rights, contrary to sections 7, 8 and 11(d) of the Charter;
3. That the non-consensual, warrantless search of Mr. Hibbert’s private room in the Kingston residence that he was staying at, was illegal and a breach of Mr. Hibbert’s s. 7 Charter rights;
4. That the subsequent warrantless search and seizure of Mr. Hibbert’s personal belongings from his private room at the Kingston residence he was staying at by members of the Kingston Police department, was illegal and a breach of Mr. Hibbert’s s. 7, 8 and 11(d) Charter rights;
5. That the arrest and the subsequent questioning of Mr. Hibbert without fully and comprehensively advising him of the full extent of the jeopardy he was facing, including the intended use of his statement and evidence in the United States by American officials for the purposes of prosecuting Mr. Hibbert, constituted a breach of Mr. Hibbert’s s. 7, 8, 9, 10(a), 10(b), and 11(d) Charter rights;
6. That the further search and forensic analysis of Mr. Hibbert’s personal electronic equipment and media devices also breached his Charter rights;
7. That any use by the American authorities of Mr. Hibbert’s guilty plea to the Canadian charges, the statements given by him to the Canadian authorities and the evidence gathered in Canada, for similar fact evidence purposes or evidence of guilt, motive, intent, preparation, plan and absence of mistake or accident, would be contrary to Mr. Hibbert’s legal and Charter rights in Canada;
8. That the guilty plea made without Mr. Hibbert’s full knowledge of the complete jeopardy and of all of the possible consequences that he was facing, in particular of the intended use of Canadian gathered evidence in the United States, was contrary to s. 606(1.1) of the Criminal Code as well as Mr. Hibbert’s Charter rights;
9. That the violations of Mr. Hibbert’s legal rights and in particular, the violation of his Charter rights “must result in the exclusion of all such evidence from consideration by this Honourable Court” in accordance with sections 24(1) and/or (2) of the Charter;
10. Alternatively, due to the violations of Mr. Hibbert’s legal and Charter rights, a stay of the U.S. extradition application should be ordered due to abuse of process;
11. Alternatively, Mr. Hibbert’s guilty plea in the Canadian proceedings should be struck out; and
12. In the further alternative, an order should be made permitting full disclosure of all communications, in whatever format, between any and all officials an authorities in Canada and the United States with regard to “these matters”, including the right to cross-examine all persons involved in “such communications”.

[17] The Attorney General asks the court to view much of the relief sought by Mr. Hibbert as an improper collateral attack on his Canadian criminal proceedings. Furthermore, an extradition judge has no jurisdiction to grant remedies related to Mr. Hibbert’s guilty plea in another criminal proceeding, which is irrelevant to the extradition hearing. With respect to the allegations concerning the impropriety of sharing evidence with the American authorities, the Attorney General argues that the law is well settled in that there is nothing improper with Canadian and foreign authorities informally sharing information and evidence for investigative and law enforcing purposes.

[18] More importantly, and fundamentally, the Attorney General’s position is that all of the relief sought by Mr. Hibbert lies outside the jurisdiction of an extradition judge. As the Supreme Court of Canada stated in Argentina [Republic] v. Mellino, [1987] 1 S.C.R. 536, at para. 29:

[t]he role of the extradition judge is a modest one: absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed.

[19] Accordingly, the Attorney General moves for summary dismissal of Mr. Hibbert’s application, relying on Rule 6.11(2) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 which provides:

Upon application by the respondent that a notice of application does not show a substantial ground for the order sought, a judge of the court may, if he or she considers that the matter is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily and cause the applicant to be advised accordingly.

Analysis

[20] In addition to Rule 6.11(2) which requires the court to determine whether an application shows “a substantial ground for the order sought”, there is an expectation that courts will act with rigour to ensure that the precious commodity of court and judicial resources is not blighted by meritless applications. In the context of trial management, the Supreme Court of Canada recently commented in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38:

And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous"…

[21] There is no principled reason why a similar approach should not be taken in applications that take place outside the boundaries of a criminal trial. Aside and apart from the need for vigilance in weeding out frivolous applications, in the specific context of extradition cases, Watt J. in Germany v. Schreiber, [2000] O.J. No. 2618, at para. 57 served the following reminder, at para. 57, of the limited scope of extradition proceedings. After quoting from various decisions of the Supreme Court of Canada, he wrote:

These authorities make it clear that extradition is to be and remain an expedited process to ensure prompt compliance with Canada's international obligations that our statute and treaties reflect. These authorities, and others like them, remind extradition hearing judges that the hearing is not a trial, nor should it be allowed to become a trial, as though it were a domestic criminal proceeding. It is not simply a matter of degree. There is a difference in kind between an extradition hearing and the trial of a domestic criminal case.

[22] The application by the Attorney General pursuant to Rule 6.11(2) has been made on notice to Mr. Hibbert. Mr. Hibbert has filed responding material, including a factum. Both counsel fully argued their respective positions during a hearing which lasted an entire day.

[23] Mr. Adler, on behalf of Mr. Hibbert, focused his attention on those of Mr. Hibbert’s Charter claims which have the greatest air of reality to them.

[24] The Supreme Court of Canada has held that an extradition judge is entitled to entertain an application for the exclusion of evidence gathered in Canada, in contravention of the Charter, where there is an air of reality to the Charter claim – United States v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3 at para. 29. However, the Attorney General, in the present case, asserts that Mr. Hibbert should not be entitled to a full evidentiary hearing on his Charter application unless his motion materials demonstrate a high likelihood that if a hearing were held, he would succeed on the merits. The Attorney General relies, in this regard, on the Court of Appeal’s decision in R. v. Kutynec, [1992] O.J. No. 347, 12 C.R. (4th) 152 (C.A.).

[25] Kutynec does not, in my view, support the position advocated by the Attorney General. In that case, the defence had intended to request a Charter voir dire at the outset of trial, but had deliberately deferred that motion until the conclusion of the Crown’s case, despite having received adequate disclosure from the Crown to make the application prior to the trial. The trial judge refused to grant a motion for a Charter hearing and the Court of Appeal found that this was an appropriate response when “the accused has not taken full advantage of all the opportunities available to him” to bring the motion in advance of trial. But, at para. 40, Finlayson J.A. recognised that:

There will be instances where the defence, through no fault of its own, cannot provide a detailed summary of the evidence that it anticipates it will call in support of an application to exclude evidence. It may be that fairness requires that the accused be given some latitude at some stage of the trial to explore potential Charter issues which he or she had no opportunity to develop prior to trial.

[26] In asking for summary dismissal of Mr. Hibbert’s application, the Attorney General also asserts that Mr. Hibbert is attempting to transform his extradition hearing into something more resembling a full criminal trial than the expedited process described in United States v. Dynar, [1997] 2 S.C.R. 462. In that case, the evidence disclosed in the ROC that had been gathered in the United States was found to be sufficient to establish that there was no air of reality to the applicant’s claim that he could establish a Charter violation given further disclosure from Canadian authorities. The court found it unnecessary to analyse the jurisdiction of the extradition judge in regard to evidence gathered through Canadian state involvement, instead electing to wait until a case when that issue would be dispositive of the appeal (see Dynar, at para. 146).

[27] Subsequent decisions of the Supreme Court have clarified that an extradition judge does have discretion to require further disclosure in order to establish the evidentiary basis for a Charter application concerning evidence gathered in Canada. In United States v. Kwok, 2001 SCC 18, 2001 S.C.C. 18, Arbour J. summarised the right to disclosure in an extradition hearing in the following terms:

The extradition judge may only order the production of materials relevant to the issues properly raised at the committal stage of the process, subject to his or her discretion to expand the scope of that hearing to allow the parties to establish the factual basis for a subsequent Charter challenge, when it is expedient to do so, including, obviously, when there is at least an air of reality to the Charter claims [citations omitted].

[28] Mr. Hibbert’s submissions focus on the photographic evidence, referred to in the ROC, which, he claims, was initially obtained, and thereafter shared with the U.S. authorities, in breach of his Charter rights.

[29] The Attorney General points out that the ROC outlines the witness evidence that, it is anticipated, will be presented to the Tennessee court and as the extradition judge, I am bound to accept the representation that such evidence is sufficient to warrant his prosecution in Tennessee.

[30] I do not accept that submission.

[31] The evidence of the victim’s mother is that the photographs shown to her depicted her daughter. Those photographs were obtained in the course of the Canadian investigation and shared by the Kingston Police Force with U.S. authorities. If, as Mr. Hibbert asserts, the photographs were obtained and thereafter shared in violation of his Charter rights, the evidence of the victim’s mother relying solely on what is depicted by the photographs would be fruit of a poisoned tree. If the photographs and the testimony based on them are not available, there may not be evidence upon which a properly instructed jury could convict Mr. Hibbert, in which case, an order for his extradition to the United States might not be granted.

[32] That, however, does not end the matter in terms of whether Mr. Hibbert’s application should be allowed to proceed.

[33] The Crown points out that Mr. Hibbert could have asserted, but chose not to, his Charter rights during the course of the Canadian proceedings. The very evidence that he now seeks to have excluded so that he can avoid extradition was obtained concurrently, and in the same circumstances, as the evidence which underpinned his prosecution in Canada and his guilty plea.

[34] Although the relief sought by Mr. Hibbert includes an order striking out Mr. Hibbert’s plea of guilty and the ordering of a new trial in Canada, it was not seriously argued that it would be open to this court to make such an order. A record of the guilty plea, the formal conviction and the sentencing of Mr. Hibbert was made available to me. There is no plausible basis for such relief to be granted and it therefore seems to me to be appropriate to summarily dismiss that aspect of Mr. Hibbert’s application without devoting further judicial resources to it.

[35] On the other hand, I do not accept the argument that Mr. Hibbert’s proposed Charter application amounts to improper collateral attack on his Canadian criminal proceedings. There has been no previous judicial determination of the Charter issue due to his guilty plea and the parties to that proceeding and the current proceeding are not the same. Accordingly, the requirements of issue estoppel are not met.

[36] The Attorney General relies on United States of America v. Pavlicevic, 2008 BCSC 410, [2008] B.C.J. No. 594 (S.C.) as establishing the principle that raising a Charter challenge in an extradition hearing after declining to raise the issue in related domestic proceedings constitutes a collateral attack on the verdict reached in the domestic proceedings.

[37] In Pavlicevic, although the court ultimately refused to allow the applicant to bring a Charter challenge on grounds of relevance, Allan J. commented, at para. 57, that Charter issues not raised before entering a plea of guilty in a Canadian court:

… are not res judicata or the subject of issue estoppel as there were no judicial proceedings or determinations and the parties are not the same.

[38] Given that, post-Anekwu, the Charter compliance of evidence gathered in Canada and then presented in support of a committal is clearly established as an issue that can properly be considered by an extradition judge, Pavlicevic does not provide persuasive support for the proposition that an extradition judge cannot adjudicate such issues in the context of a committal proceeding.

[39] The Attorney General also expressed concern that if Mr. Hibbert’s Charter motion was successful, it might provide grounds for an appeal of his conviction in the criminal court. It was argued that such a possibility supports the view that Mr. Hibbert’s application constitutes a collateral attack on the earlier proceeding.

[40] The short answer to this is that unless Mr. Hibbert can show that his guilty plea in the earlier proceeding was not voluntary, unequivocal and informed, there would be no basis for it to be set aside: R. v. Wong, 2018 SCC 25, 2018 S.C.C. 25 at para. 3. The later determination of an issue that might have been raised by Mr. Hibbert in his Canadian proceedings does not suggest that his plea was not properly informed according to the Wong criteria. Furthermore, as a practical matter, Mr. Hibbert has all but completed his sentence arising from the Canadian proceedings.

[41] The record discloses no plausible basis upon which this court could or should set aside his guilty plea and order a new trial. As previously indicated, this aspect of the relief sought in Mr. Hibbert’s notice of application was not pursued with any vigour during argument.

[42] Mr. Hibbert’s claim that the obtaining of evidence from his electronic devices by the Kingston Police Force, and the subsequent sharing of that information with United States authorities breached his Charter rights, should be allowed to proceed. The parties should contact the trial coordinator in Kingston to schedule a full day for the hearing of that application. The parties should also advise the trial coordinator if any directions are required from me prior to the hearing of that application.

[43] Counsel for Mr. Hibbert indicated that his client intends to apply for bail. A bail application, supported by appropriate material, can be scheduled with the trial coordinator to be heard either by me or, if I am not reasonably available, by another Superior Court judge sitting at Kingston.

Graeme Mew J. Released: 10 December 2018