COURT FILE NO.: CR-21-90000008-00MO
DATE: 20210316
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
– and –
MUHAMMAD RANA
H. Graham, for the Attorney General of Canada
L. Kwok, for Mr. Rana
HEARD: 11 February 2021
s.a.Q. akhtar j.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The United States of America seeks to extradite Muhammad Rana under s. 16 of the Extradition Act, S.C. 1999, c. 18, in respect of a series of allegations including engaging in sexual communications with children under the age of 18; coaxing them into exposing private body parts which were photographed; and extorting his victims, under threat of publication, to perform sexual acts on camera.
[2] The applicant seeks bail pending his extradition hearing. The Crown opposes bail on all three grounds contained in s. 515(10) of the Criminal Code, R.S.C. 1985, c. C-46. At the end of submissions, I informed both counsel that Mr. Rana would be released on bail with strict conditions. These are my reasons for that decision.
The Allegations
[3] The applicant is alleged to have met a number of a number of girls living in the United States on Omegle, an internet chat site. During their conversations, the applicant persuaded the girls to pose in a sexual manner, usually by exposing their breasts. When they did, the applicant would make screen recordings.
[4] Afterwards, the applicant contacted the victims through email and told them that they had to communicate with him through another chat site, Tinychat. Failure to follow his demands would result in their screen recordings being posted online.
[5] Many of the victims were under the age of 16, one being between 12 and 13 years old. When interviewed by the Federal Bureau of Investigation, the victims confirmed that they revealed their age to the applicant during their conversations.
[6] In subsequent meetings the applicant ordered his victims to expose their genitals and perform sexual acts which included placing objects into their vagina and anus. Once again, the applicant recorded these acts. All of the victims were threatened with the prospect that failure to comply would lead to online publication of the videos.
[7] Canadian authorities were alerted to the applicant’s activities. When officers executed a search warrant at the applicant’s home, he confessed to creating the email account used to communicate with the victims. He also admitted his demands that the victims communicate with him on the Tinychat platform.
[8] The applicant told the police that he had asked some of the victims to masturbate using objects such as a hairbrush and marker, warning them that if they refused he would make their sexually explicit videos available online.
[9] The Record of the Case for the Prosecution (ROC) provided by the Crown describes five victims, all of whom are minors, ranging from 12-16 years of age.
[10] When police searched the applicant’s computer they discovered sexually explicit images of two of the victims referred to in the ROC.
LEGAL PRINCIPLES
[11] Section 19 of the Extradition Act (EA) makes s. 515(10) of the Criminal Code applicable to judicial interim release sought in extradition hearings. The Crown points out that s. 18(1)(b) of the EA adds the phrase “with any modifications that the circumstances require”.
[12] The jurisprudence is clear that the “modifications” include ensuring that Canada adheres to its international obligations: United States of America v. Liebowitz, [1987] O.J. No. 1505 (Dist. Ct.); United States of America v. Mordi, 2010 ONSC 6666, at para. 4.
[13] Other provinces have observed that in light of the extradition treaty signed with the United States, courts must be sensitive to any risk of flight or non-appearance by the detainee: U.S.A. v. Sharif, 2011 ABQB 62, 511 A.R. 130, at para. 26. In this case, however, the Crown concedes that the flight risks are minimal.
[14] The Crown’s concerns in this case focus on the secondary and tertiary grounds contained in s. 515(10) of the Code. It argues that if released there is a substantial likelihood that Mr. Rana will commit further offences endangering public safety. The Crown further submits that Mr. Rana’s detention is required to maintain confidence in the administration of justice.
[15] The Crown’s secondary ground argument is based on the cybernetic nature of the allegations. Quite rightly, the Crown points out that the offences with which Mr. Rana has been charged are those that are readily committed at home with the assistance of a computer and internet access. It is not disputed that if committed, these offences will endanger public safety, a factor required in the secondary ground analysis: R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, at p. 737; R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at paras. 57-58.
[16] The Crown also relies upon the leading cases of R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, and R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, in advancing the position that Mr. Rana’s release will undermine confidence in the administration of justice.
[17] Section 515(10)(c), sets out four criteria to be used when deciding whether the tertiary ground had been satisfied:
Strength of the Crown’s case
Gravity of the offence
Circumstances surrounding the commission of the offence including whether a firearm was used
The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment
[18] Both Hall and St-Cloud made clear that the tertiary ground was not a residual or last resort ground but one that was separate and distinct, needing to be evaluated on its own terms.
SHOULD MR. RANA BE RELEASED?
The Secondary Ground
[19] In seeking bail, Mr. Rana proffers two sureties: his father Muhammad Zakaria Rana, and his wife Rizwana Masood. Mr. Rana’s father owns his house and is prepared to put the entire equity of that house as a surety amount to be forfeited if the accused breaches any release conditions. The accused also proposes a plan that amounts to house arrest with limited exceptions, along with the undertaking that he will terminate any internet access in his home.
[20] Turning to the secondary ground factors, I agree with the Crown that these are serious offences. I also agree that the Crown has a very strong case in both the committal and trial contexts. As noted, when police executed the search warrant, Mr. Rana is alleged to have made a series of admissions regarding the offences.
[21] However, the ultimate question when deciding bail on the secondary ground is whether there is a substantial likelihood that if released Mr. Rana would commit offences that would endanger public safety.
[22] In this case, I find the events of 2017 to be persuasive. Then, on 23 March 2017, Mr. Rana was charged with the same or similar offences but which were committed on the Canadian side of the border in Ontario. He was released on bail to reside with his father. There is no evidence that he breached any of the conditions imposed upon him before that case was stayed by the Crown on 15 September 2017.
[23] The compliance with his previous bail conditions and absence of evidence of any further wrongdoing gives me confidence that, if released, Mr. Rana would not breach the strict conditions that I intend to impose on him.
[24] Like the Crown, I have some concerns about Mr. Rana’s wife, Rizwana Masood and her ability to act as surety. In particular, her evidence that that she did not really discuss her husband’s allegations with him after his arrest is troubling. Nor, when pressed by the Crown, could she explain why that was the case.
[25] However, I conclude, with the correct conditions the secondary ground concerns can be met.
Tertiary Ground
[26] I also agree with the Crown that the four factors set out s. 515(10)(c), on their face, point towards detention. As noted, the Crown’s case is strong; the offence is very serious; the circumstances of the offence involves minors; and if convicted Mr. Rana faces a very lengthy prison sentence.
[27] However, the secondary and tertiary grounds work together in this particular case. The overriding objective of the tertiary ground is to address public confidence in the administration of justice: Hall, at para. 41; St-Cloud, at para. 69.
[28] Here, the fact that Mr. Rana was released on bail in 2017 and, for approximately nine months, spent time on bail without any breaches of his release conditions, means that public confidence in the administration of justice would not be damaged if Mr. Rana was released.
[29] For these reasons, I am satisfied that the secondary and tertiary grounds are sufficiently addressed by a release with the following conditions:
• A surety amount of $500,000 with the named sureties being Muhammad Zakaria Rana and Rizwana Masood
• Report to 2440 Lawrence Avenue East, Toronto (Toronto Police Fugitive Squad) forthwith upon release and thereafter every Tuesday between the hours of 9:00 am and 9:00 p.m. and sign in as required
• Reside with Rizwana Masood at 54 Miles Hills Crescent, Richmond Hill, Ontario
• Remain in his residence at all times except for medical Emergencies involving himself, or a member of his immediate family for purposes of travelling directly to, from and while at court appearances, or meeting with your lawyer, or for purposes of complying with this or any other court Order (Travel for these exceptions must be done in the presence of a surety).
• Remain in Ontario
• Deposit his passport with Toronto Police Fugitive Squad forthwith upon release and not to reapply for a passport or any other travel permits or documents.
• Not be in the company of or communicate, directly or indirectly, by any physical, electronic or other means with males or females under the age of 16 years, except family members in the company of a surety
• Not possess or use any telephone, computer, or any other device that has access to the Internet or other digital network except:
• where necessary for virtual court appearances, speaking with his lawyer, and reporting to the Toronto Police Fugitive Squad, in the presence of a surety.
• Terminate internet access at the residence at 54 Miles Hill Crescent, Richmond Hill
[30] Mr. Rana is released on these conditions. I thank both counsel for their very helpful submissions.
S.A.Q. Akhtar J.
Released: 16 March 2021
COURT FILE NO.: CR-21-90000008-00MO
DATE: 20210316
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
– and –
MUHAMMAD RANA
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.