United States v. Gregory Hibbert

COURT FILE NO.: CR-18-00000016-00MO

DATE: 20190503

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: United States v. Gregory Hibbert

BEFORE: Mr. Justice Mew

COUNSEL: Heather J. Graham, for the Attorney General of Canada Leo Adler, for the Person Sought for Extradition

HEARD: 28 March 2019, at Kingston.

ENDORSEMENT

[1] Gregory Hibbert, the person sought for extradition, has applied to the court for bail, disclosure, exclusion of evidence, a stay of proceedings and alternative relief. The principal ground upon which he resists extradition to the United States 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, 8 and 10 of the Canadian Charter of Rights and Freedoms.

[2] Section 32(2) of the Extradition Act, S.C. 1999, c. 18, provides that evidence gathered in Canada in connection with an extradition request must satisfy the rules of evidence under Canadian law in order to be admitted.

[3] On 10 December 2018, with reasons reported at 2018 ONSC 7400, I declined a Crown request to summarily dismiss Mr. Hibbert's application. While there were aspects of the relief sought by Mr. Hibbert which I said should not proceed further, I determined that there should be a full hearing of 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.

[4] In anticipation of that hearing, Mr. Hibbert now requests further disclosure, consisting of the following:

a. cross-examination of the Kingston police officers who conducted a warrantless search which resulted in the seizure of personal electronic equipment and media devices owned by Mr. Hibbert;

b. cross-examination of the officers responsible for obtaining a statement from Mr. Hibbert on 7 July 2016;

c. disclosure of all communications between Canadian officials and US officials concerning the sharing of evidence.

[5] It is well established that any requirement for disclosure is necessarily constrained by the limited function of the extradition judge under the Extradition Act, c. 18: United States v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462 at para. 133.

[6] Before ordering the production of documents and compelling testimony in support of allegations of state misconduct, the person sought for extradition must satisfy the court that (a) the allegations made by him concerning state misconduct are capable of supporting the remedy sought; (b) there must be an air of reality to the allegations; and (c) it must be likely that the documents sought and the testimony sought would be relevant to the allegations: R. v. Larosa (2002), 2002 CanLII 45027 (ON CA), 166 C.C.C. (3d) 449 (Ont. C.A.), at para. 76.

[7] The practical application of the "air of reality" requirement and the powers of an extradition judge in conducting an inquiry into Canadian-gathered evidence and when such an inquiry should be undertaken is explained in United States v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, at para 31:

... the extradition judge may, in his or her discretion, require any person to appear for examination or cross examination in respect of the Canadian gathered evidence tendered in summary form in the record of the case. For example, this may be appropriate if it is unclear whether the evidence substantively conforms with the rules of evidence. Likewise, where there is an "air of reality" to a Charter claim, the extradition judge may well find it appropriate in exceptional circumstances to require the attendance of any witness. Of course, the court in exercising its discretion must be mindful that, contrary to the preliminary hearing, there is no general right to cross examine witnesses in the extradition context... [references omitted].

[8] Mr. Hibbert raises concerns over (a) the seizure of his property during a warrantless search; (b) the conduct of an interview, seemingly with respect to a single charge of voyeurism, but allegedly undertaken in the knowledge, on the part of the police, that Mr. Hibbert had, in addition to a Kingston family, stayed with families in Bowmanville (Ontario) and Tennessee, without any further or additional caution being given and without any indication that his statement would be shared with US authorities; (c) improper overholding of Mr. Hibbert to assist evidence gathering; (d) the eventual obtaining of a warrant to examine Mr. Hibbert's electronic equipment and media devices; and (e) the sharing of information between Canadian and US officials.

[9] The Record of Case ("ROC") which accompanies extradition, the request discloses that the alleged victim's mother was shown photographs, which she identified as depicting her daughter. These photographs were obtained in the course of a Canadian investigation. Other photographs extracted at the same time formed the basis for charges which were laid against Mr. Hibbert in connection with offences that occurred in Kingston and in Bowmanville. He pleaded guilty to those charges. As I noted in my previous decision, to the extent that those charges were based on images that had been retrieved from the devices belonging to Mr. Hibbert which were seized by Kingston police and subsequently examined pursuant to a warrant, no challenge to the legality of the seizure and search of those devices, and, hence, no consideration of any Charter issues that may have existed, took place.

[10] The Crown, on behalf of the United States of America, argues that the court now has all of the information that it requires to determine whether or not Mr. Hibbert's Charter rights have been infringed.

[11] The Crown’s position is that Mr. Hibbert had no reasonable expectation of privacy necessary to engage his section 8 Charter rights. Members of the Kingston Police Force entered a private room in a private residence with the permission of the homeowner and seized Mr. Hibbert's devices. The room was not his own private room but, rather, the private room of one of the children who resided in the house. Mr. Hibbert had no power to prohibit anyone from entering that room. The homeowner, on the other hand, had every right to enter the room and take the devices and to hand them over to the police. Furthermore, the Crown points out that Mr. Hibbert had left a video camera, concealed in a radio, in the common bathroom of the residence.

[12] The notes of the officers involved have been disclosed as has the Information to Obtain which was subsequently provided for the purposes of obtaining a warrant authorising the examination of the devices seized.

[13] With respect to the interview of Mr. Hibbert, the Crown points to references on the record of the interview to the possibility of further charges and argues that there is no foundation for the assertion that Mr. Hibbert's section 10 Charter rights were infringed.

[14] The Crown adds that there is no basis for believing that anything in addition to the information that is already available to the court will assist the court in assessing the validity of the concerns expressed by Mr. Hibbert or the effect of the breaches he alleges.

[15] As to the exchange of information between the Canadian and US authorities, Mr. Hibbert is aware that the Kingston Police shared information and, in particular, images, with US authorities. This is said to have been done in accordance with the general practices of sharing information between jurisdictions. The Crown argues that, as with his other expressed concerns, Mr. Hibbert has failed to demonstrate how further disclosure of all communications, in whatever format, between any and all officials and authorities in Canada and the United States, would assist this court in undertaking its responsibilities under the Extradition Act.

[16] I would observe that bald allegations will not suffice to anchor a disclosure request. Citing the British Columbia Court of Appeal in United States of America v. Fraser, 2017 BCCA 136, at para. 69, the Crown states that a distinction must be drawn between, on the one hand, an application for disclosure amounting to a fishing expedition which is founded on a complete absence of information and, on the other hand, one based on a positive assertion of facts. According to the Crown, the present request falls into the first of those categories.

[17] The legality or otherwise of the manner in which the Kingston Police obtained Mr. Hibbert's electronic equipment and devices lies at the heart of his claim of unlawful search and seizure. Was it sufficient for the homeowner to invite the police in and permit them to take away Mr. Hibbert's property without prior judicial authorization? Or did Mr. Hibbert have a reasonable expectation of privacy, such that the taking of these items from the room that he was staying in amounted to a violation of his privacy right and, hence, his right to be secure against unreasonable search or seizure? These are questions which the court will presumably have to address as part of its consideration of Mr. Hibbert's application.

[18] In Belapatino Savaress c. Procureure générale du Canada (États-Unis d'Amérique), 2019 QCCA 123, a ROC presented by the United States as part of an extradition request had referred to "appropriate approvals" having been obtained, but did not disclose how such authorisations had been obtained or who had granted them. In those circumstances, the Québec Court of Appeal ordered disclosure of a copy or summary of all authorisations obtained and the documents and information (including verbal exchanges) used to obtain such authorisations. Mr. Hibbert commends a similar approach to this court.

[19] The difficulty I have with that argument is threefold. Firstly, there was no prior authorisation for the seizure of Mr. Hibbert's property. There is no real debate over what happened. It has not been asserted by the Crown, so far at least, that this was a warrantless search undertaken in exigent circumstances. The court will have to decide on the facts whether it was a lawful seizure or not. Secondly, no cogent reason has been presented for believing that cross-examination of any of the officers involved would add to the court's understanding of what happened and why. Thirdly, the search of Mr. Hibbert's property was undertaken pursuant to judicial authorisation. The Information to Obtain that authorisation has been produced. Again, no reasonable foundation has been established that would justify looking behind that judicial process by requiring the disclosure of further information, or the examination of the officers concerned, in relation to that ITO or the warrant that resulted from it.

[20] With respect to the exchange of information between the Canadian and US authorities, the court will have to decide whether that exchange was, in fact, the sort of informal cooperation and evidence sharing between jurisdictions that has been recognised as appropriate in cases such as United States of America v. Wakeling, 2014 SCC 72, or whether the sharing violated Mr. Hibbert's section 8 right to privacy.

[21] In the result, while I recognise both an air of reality to the complaints which Mr. Hibbert makes, and the possibility that Mr. Hibbert's application could succeed if he can demonstrate that evidence was gathered in Canada in violation of his Charter rights, I am not persuaded that it is likely that the further documents and the testimony sought by him would be relevant to the allegations which he makes.

[22] Accordingly, I decline to order the additional disclosure which he has requested.

Graeme Mew J.

Date: 3 May 2019