COURT FILE NO.: CR-19-90000013-00MO DATE: 20210205 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Attorney General of Canada on behalf of the United States of America – and – Zong Tao Chen also known as Mark Chen Respondent/Applicant

Counsel: Christopher Bundy and Rebecca Sewell, for the Crown Leo Adler, for the Respondent/Applicant

HEARD: February 5, 2021

A.J. O’Marra J. (Delivered Orally)

RULING

BACKGROUND

[1] Zong Tao Chen, also known as Mark Chen, is sought for extradition by the United States of America for prosecution related to sex trafficking offences. It is alleged in the Record of Case (ROC) provided by the U.S. authorities that Mr. Chen used websites to advertise prostitution related services of Asian women across the United States, Canada and Australia. It is alleged that he arranged for women to travel to various locations to meet men and engage in sexual acts for which they would be paid, and he would receive a portion of their earnings.

[2] As part of Mr. Chen’s response to the extradition process set to proceed today he filed and served a notice of constitutional validity and factum, January 28, 2021 in which he raised a constitutional issue that s. 286.2 of the Criminal Code is constitutionally invalid as it infringes ss. 2(d) and 7 of the Charter of Rights and Freedoms.

[3] The Attorney General of Canada (Crown) in response requests that the proposed constitutional challenge to the legislation brought by the respondent/applicant be dismissed summarily pursuant to the inherent jurisdiction of the Superior Court of Justice to control its process where an application does not disclose an evidentiary or legal basis to grant the remedy sought.

[4] The proceedings to date are that on April 15, 2019 the Attorney General of Canada was authorized by an Authority to Proceed (ATP) issued by the Minister of Justice to seek an order for Mr. Chen’s committal for the offence of “receiving material benefit from sexual services contrary to s. 286.2(1) of the Criminal Code”.

[5] On June 22, 2020 the respondent/applicant filed a notice of application and constitutional question relating to the constitutionality of s. 286.2 of the Criminal Code claiming that it infringed ss. 2(d) and 7 of the Charter. The Notice stated that the date to hear and determine the matter would be set on July 9, 2020.

[6] On the same date, June 22, 2020 the Minister of Justice issued a substituted ATP pursuant to s. 23 of the Extradition Act referencing s. 279.02 of the Criminal Code thereby removing s. 286.2. The revised ATP referred to “receiving a financial or other benefit under s. 279.02 as the Canadian offence corresponding to the alleged conduct in the United States of America set out in the ROC.

[7] The Notice of Constitutional Question and factum was served and filed January 28, 2021, seven months after the original notice, and unilaterally set to be heard today by the respondent/applicant. He challenges the constitutional validity of s. 286.2(1) of the Criminal Code as being inconsistent with the Canadian Charter of Rights and Freedoms and for the court to consider the effect of such invalidity on s. 279.02 of the Code.

[8] In the interim, Mr. Chen unsuccessfully challenged the constitutionality of ss. 2(2) and 3(2) of the Extradition Act as to the dual roles of the Minister of Justice and the Attorney General of Canada. Further, an application for disclosure of a parallel Canadian investigation, disclosure of reasons for the substituted ATP and a challenge as to whether the ATP was issued within the timelines of the Extradition Act were also dismissed by Goldstein J. on October 30, 2020. The court concluded that there is nothing unfair or abusive about substituting a new ATP, which refers to s. 279.02.

[9] As noted earlier the respondent/applicant filed and served the notice and factum on January 28, 2021, challenging the constitutionality of s. 286.2(1) and by analogy s. 279.02 nine days prior to the date set for the extradition hearing.

[10] In considering the request to dismiss, I consider as noted in U.S.A. v. Dynar [1997] 2 S.C.R. 857 at para. 122 that the extradition hearing is intended to be an expedited process designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international treaty obligations. Further, as noted in R. v. Kutynec, [1992] O.J. No. 347 where an application or a motion does not disclose an evidentiary or legal basis on which the court can grant the remedy sought the Superior Court has inherent jurisdiction to summarily dismiss it.

[11] After hearing arguments of counsel at the outset of the Extradition Hearing I consider the following in dismissing the application:

(a) Section 286.2(1) is not a provision before the court on the extradition hearing set to proceed today. The ATP, the “indictment” in the extradition process which sets out the criminal conduct had it occurred in Canada is with respect to s. 279.02 of the Criminal Code, not s. 286.2(1). In Canada v. Fischbacher 2009 SCC 46, [2009] 3 S.C.R. 170 at para. 32, it was stated:

An ATP is akin to an information or indictment in a domestic prosecution in that the corresponding Canadian offence or offences listed in an ATP provide the focus of the determination to be made at the judicial stage.

The Court is to consider the evidence as contained in the ROC, in light of Canadian law and determine whether the conduct revealed would justify committal of the crime listed in the ATP if it occurred in Canada (dual criminality). In this instance, the provision cited by the Minister of Justice as corresponding the alleged offence is s. 279.02, an offence which has different elements to s. 286.2. Section 279.02 is the provision that frames the “essence of the offence” for which he is sought – not s. 286.2.

(b) Even if there is an evidentiary basis to find s. 286.2 unconstitutional a parallel declaration by analogy to s. 279.02 cannot be made. Firstly, there is no authority that permits constitutional invalidation of one provision to apply to another. Secondly, the elements differ, as s. 286.1 and s. 286.2 deal with obtaining sexual services for consideration, whereas s. 279.02 deals with the exploitation or facilitating the exploitation of vulnerable persons who had been trafficked for sex or any other labour or service. The focus of the provision is with respect to the exploitation of vulnerable persons. Here, there is no evidentiary or legal basis to analogize the impugned conduct under s. 286.2 to s. 279.02. The focus of the provision is to prevent human trafficking and to protect vulnerable persons, especially women and children by criminalizing a wide range of conduct aimed at exploiting them. (See R. v. D’Souza 2016 ONSC 2749, [2016] O.J. No. 4992 (SCJ) at para. 165.)

(c) Further, Section 279.02 has been declared previously as constitutional in R. v. D’Souza by Conlon J. in a thorough and well-reasoned judgment. The respondent/applicant has not demonstrated in any of the material submitted that the D’Souza decision is either plainly or sufficiently wrong to find otherwise. In the interest of stare decisis and judicial comity there is no basis to revisit the matter.

(d) The respondent/applicant has failed to comply with the Criminal Proceeding Rules of the Superior Court of Justice Rule 27.04 in providing sufficient notice (30 days) on a constitutional issue, or having altered his notice of constitutional challenge to reflect the provision before the court in the revised ATP - s. 279.02. Further, in seeking to invalid a provision of the Criminal Code, or any act of Parliament Notice is required to have been served pursuant to the Rules on the Constitutional Law Division of the Minister of the Attorney General of Ontario 30 days before the date fixed for the hearing of the application. There has be no service on the Ministry of the Attorney General for Ontario as to this hearing date.

[12] The application is dismissed, and the scheduled extradition hearing shall proceed.

A. J. O’Marra J. Released: February 5, 2021