REASONS FOR DECISION

[1] The United States of America has requested the extradition of Zong Tao Chen also known as Zongtao Chen, also known as Mark Chen, (Chen) for related sex trafficking offences. He is alleged to have participated in the recruitment and trafficking of women of Asian descent in the sex trade and is believed to run a sex trafficking organization. The Minister of Justice has issued an Authority to Proceed (ATP) pursuant to s. 15 of the Extradition Act, SC 1999, C 18 authorizing the Attorney General of Canada to seek an order for Chen’s committal for extradition to the United States of America.

[2] The ATP lists as the Canadian offence, which corresponds to the conduct summarized in the Record of the Case provided by the U.S. authorities had it occurred in Canada, as receiving a financial or other material benefit contrary to s. 279.02 of the Criminal Code of Canada.

[3] On receipt of the ATP s. 24(1) of the Extradition Act requires the court to hold an extradition hearing and under 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 and the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner.

[4] Mr. Chen admits that he is the person sought in this extradition request.

[5] The evidence available to the United States of America is described in the Record of the Case (ROC) certified by Scott M. Kerin, an Assistant U.S. Attorney for the U.S. Attorney’s office for the District of Oregon. The Record of the Case summarizes the evidence available for Chen’s prosecution in the United States and its certification by the U.S. Attorney’s office confirms that the summarized evidence is available and sufficient under the laws of the United States to justify prosecution in that jurisdiction.

[6] The jurisdiction of the extradition judge is statutory and limited. The extradition judge’s role is simply to decide whether he or she is satisfied that the person before the court is the person sought and whether “there is evidence admissible under the Extradition Act and available for trial of conduct that had it occurred in Canada would justify committal for trial in Canada (see M.M. v. United States of America, 2015 SCC 62 at para. 36).

[7] The extradition judge’s sole responsibility under ss. 24 and 29 is to hold a hearing to determine whether the evidence would support a committal on the Canadian offence as described in the ATP. The test to be applied under s. 29(1)(a) incorporates the test for committal to trial as applied by a justice at a preliminary inquiry – whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The extradition judge does not consider the law of the foreign state, the nature of the charges of the foreign state, the foreign charges document or the jurisdiction of the foreign state to prosecute (see McVey v. USA, 1992 CanLII 48 (SCC), [1992] 3 SCR 475 at paras. 103, 104; United States of America v. Kavaratzis, 2004 CanLII 18251 at para. 17, United States of America v. Yang, 2001 CanLII 20937 at para. 5 and United States of America v. Drysdale, 2000 CanLII 22651 at paras. 67-81).

[8] The Supreme Court of Canada cautioned in M.M. that extradition judges must guard against allowing extradition hearings to become trials:

While the role of the extradition judge in scrutinizing evidence has been somewhat enhanced to ensure Charter compliance, it remains the case that an extradition hearing is not a trial and it should never be permitted to become one: Schmidt at p. 515. The process is intended to be expeditious and efficient so as to “ensure prompt compliance with Canada’s international obligations”: Dynar at para. 122.

[9] In keeping with the admonition Cromwell J. in M.M. emphasized that the limited test articulated in s. 29 means that possible defences or other matters upon which an accused bears an evidential or persuasive burden, lie outside in an extradition judge’s consideration at the committal hearing.

[10] Mr. Chen is alleged to have been engaged in sex trafficking from which he has received a financial or other material benefit. The evidence of the criminal conduct is summarized in the ROC.

[11] It is alleged that Mr. Chen used websites to advertise for prostitution-related services involving Asian women for sex across the United States, Canada and Australia. At the direction of Chen women travelled across the United States to engage in sexual activities from which he was paid a portion of their earnings. Chen is alleged to have organized transportation, scheduling and hotel bookings for the women to provide sexual services. He used websites to advertise his services using principally the service of supermatchescort.com.

[12] U.S. authorities obtained subscriber information connected to the website, executed warrants on Chen’s email and bank accounts and interviewed witnesses who all linked Chen to the sex trafficking activities advertised on these sites.

Law Enforcement Evidence

[13] Mike Callagher, a Portland police officer with more than 20 years experience investigating sex trafficking and prostitution-related offences investigated various prostitution-related websites including supermatchescort.com from August 2015 through 2019. Posted advertisements on these sites contained pictures of Asian women posing in provocative manners wearing lingerie or bikinis and offering illicit services to the Greater Portland Oregon Metropolitan area.

[14] Officer Callagher a recognized expert in sex trafficking and prostitution-related offences is expected to testify that the supermatchescort.com website had a menu that listed their supermatch girls, rates charged, description of the site, a way to contact the site to set up “dates”, employment, a press room, and the “girls in their city”. Many of the advertisements provided descriptions of the prostitution-related services that the women offer, using coded prostitution language such BBJ (Bare Blowjob) and GFE (Girl Friend Experience-prostitution acts involving kissing). The supermatchescort.com website linked to the email address of supermatchescort@gmail.com, a phone number and a WeChat contact that allowed customers to contact Chen directly.

[15] Officer Callagher, in an undercover capacity, scheduled more than fifteen “dates” (encounters for the purposes of engaging in acts of prostitution) over the course of the investigation with women advertised on supermatchescort.com and websites linked to supermatchescort.com all of which had been linked to the Chen sex trafficking organization.

[16] June Piniewski, a Special Agent with the Federal Bureau of Investigation is familiar with the operations of sex trafficking organizations and in her capacity as the lead investigator into the Chen sex trade organization she obtained federal search warrants for bank records, email accounts, and online scheduling system, and 500 web domains associated with Chen, including the supermatchescort.com site.

[17] She is expected to testify Chen used the supermatchescort.com as the main website to post online prostitution-related advertisements across the United States, Canada and Australia. The supermatchescort.com website displays multiple pictures of Asian women posing in a provocative manner often wearing lingerie or bikinis and provides a menu listing of their “supermatch girls”, the rates charged, description of the site, way to contact the site and set up dates, “employment, press room and the girls in your city”. The supermatchescort site is linked to various women who operated in more than 50 cities across the United States and multiple cities in Canada and Australia. In her investigation she discovered the following:

• Subscriber information obtained in the United States in March 2018 from Google, related to email address supermatchescort@gmail.com, identified the subscriber’s name as Zong Tao Chen with a recovery email of markzongtaochen@gmail.com.

• She obtained and executed a search warrant on Chen’s Hotmail account for the content of email address Chen_zong_tao@hotmail.com, used by Chen for personal use also revealed numerous emails over the last two years detailing records of money transfers from numerous individuals with Asian female names to Chen to include an indicted co-defendant Ting Fu who ran a brothel in Oregon and Quixia Zhang (Q. Zhang) a woman identified as working for Chen as a prostitute in South Dakota. The account was also used to make hotel, flight and bus reservations for individuals with Asian female names travelling to cities in the U.S. in which women were advertised via supermatchescort.com website.

• Special Agent Piniewski found as a result of a search warrant executed in the United States on the supermatchescort@gmail.com account that starting in December 2016 there were thousands of incoming emails from various “Johns” seeking dates and making inquiries about the availability of specific women in specific cities, the dates and times of availability and the costs of services offered.

• In September 2018 a search warrant executed in the U.S. on a company that hosts the website folkspost.com, an online calendar used to organize and schedule “dates” that included customer phone numbers, the name of the dispatcher who scheduled the date and the woman that the customer was scheduled to visit, reflected the administrator’s user name as “Mark”. On multiple occasions Special Agent Piniewski was able to corroborate that a date scheduled by either law enforcement or a customer buyer via supermatchescort.com website showed up in the folkspost.com calendar.

• In April 2018 Special Agent Piniewski reviewed a cellphone that was seized from a prostitute in the sex trafficking investigation because of a “date” arranged through supermatchescort.com by an undercover officer. There were WeChat messages received on the phone from Chen’s profile image which provided his first name, last name, phone number and several names of hotels in different cities to which the prostitute was supposed to travel and banking information. For example, a message from Chen on March 10, 2018 with hotel information read “first name: Zong Tao, last name: Chen, country: Canada, phone: 416-732-4321” – his phone number listed at Younheng Real Estate, Toronto.

• Chen’s WeChat profile includes a reference to him as “Pial and Drift”. Based on information from a Co-operating Witness -1 (C.W.-1); phone numbers listed on the WeChat profile are the same as listed on the supermatchescort.com website and that the name “Mark” is associated with the profile.

[18] Brandon Tabbal, an FBI forensic accountant analyzed a Bank of America checking account ending with numbers 9683 that lists Zong Tao Chen as the account holder found the following:

• From March 2016 through to February 2018 Chen’s Bank of America account consistently received various amounts of cash deposits (hundreds to thousands of dollars at a time) from different cities around the United States and within days of those cash deposits funds were withdrawn from Chen’s Bank of America account at locations in Canada.

• From late 2017 - early 2018 through to May 2018 money transfers via Zelle, an email or mobile phone transfer of funds between bank accounts, were used to send money to Chen’s Bank of America account that originated from senders with female Asian names. The money transfers to Chen’s Bank of America account were withdrawn in Canada for the same amounts that had been deposited within days of the deposits.

• Chen’s Bank of America account received cash deposits in over 14 states in the United States and that once the deposits were made, they were withdrawn in Ontario at Scotiabank and Toronto Dominion Bank locations.

• Chen made 72 payments to VIP Host International between April 10, 2018 and May 21, 2018 from his Bank of America account. VIP Host International is a “virtual internet provider” that enables the customization or enhancement of web design features such as “live chat”. Supermatchescort.com used VIP Host International to augment its website, allowing customers should they choose, to “live chat” with a dispatcher when they were scheduling a date with a provider.

[19] Joshua Barkley, a U.S. Customs and Border Patrol Officer at Alexander Bay, New York port of entry, on May 12, 2016 conducted an inspection of Chen’s cellular phone as he attempted entry into the United States. He found numerous pictures and images that appeared consistent with prostitution and escorts, including multiple pictures of Asian females in provocative poses listing numbers and signs indicating how to contact them.

[20] During an interview Chen admitted he posts advertisements for escorts on multiple websites and handles calls and arranges “dates” for the escorts. He received 8 – 10 percent of the money earned by the escorts. Chen further told the officer that his ex-wife in Canada was named Rui Li. In anticipated evidence noted below in WeChat conversations Chen asked an escort (Lan Ping Zhang): “can you transfer money to Chase? Name of Bank: Chase, account: 33557929, name of account: Rui Li”.

Civilian Witness

Lan Ping Zhang

[21] Lan Ping Zhang (Zhang) is expected to testify that she worked for Chen as a prostitute between October 2018 and January 2019. Zhang is a Chinese national with extremely limited English skills. In October 2018 she was recruited to work as a prostitute with the understanding she was to receive help finding a husband and obtain legal status in the United States. She replied to an advertisement posted on Chen’s WeChat page and in WeChat messages Chen promised Zhang he would help her acquire legal status in the United States, which led her to believe that he would act as a matchmaker for her and help her find a “white man” in the United States to marry.

[22] She is expected to testify that Chen told her to travel around the United States to various hotels to meet “friends”. He told her which hotels to use including hotels in Tucson, Arizona; Albuquerque, New Mexico; Fort Collins, Colorado; Lincoln, Nebraska; Sioux Falls, South Dakota; Bloomington and St. Paul Minnesota; and Fargo, North Dakota. Chen used supermatchescort.com to schedule prostitution dates for Zhang at various hotels and Chen also booked the hotel rooms for her.

[23] Chen told her that the customers referred to as “friends” would owe her $140.00 per half hour or $180.00 per hour spent with her. Chen told Zhang that she must perform sex acts and/or engage in sexual intercourse with men so that they could “test the goods” and decide whether they want to marry her. She was required to send a portion of the money to Chen.

[24] After several initial dates in which there was sexual encounters in exchange for money Zhang told Chen that she no longer wanted to participate in the “dates”. Chen told her that she had no way out, she “wasn’t clean anymore”, and if she wanted a boyfriend and a “green card” she must continue to engage in acts of prostitution. Chen also told Zhang that he knew where her family was in China, which she took as a direct threat on her family that would be carried out if she stopped working for Chen.

[25] Chen instructed her to pay him in money orders which were wired from the United States to Canada. Zhang also transferred money to Chen’s Bank of America account, ending in number 9683.

[26] In November 2018 Zhang was arrested in Sioux Falls after an undercover police officer scheduled a date with her via a site linked to supermatchescort.com. After her arrest Chen reached out to her and instructed her not to talk about him and to delete any messages between the two of them. Following her arrest in South Dakota Chen directed her to go to North Dakota and continued to work for him.

[27] Zhang will testify that she communicated with Chen over the telephone and via WeChat and text messages. Her telephones, two of which are in law enforcement custody reveal that Zhang made phone calls and had WeChat conversations with Chen’s identified 416 phone number in which the amounts to charge were discussed and to transfer money to a Chase bank account “335557929, name of account: Rui Li”.

Chenglan Huang

[28] Chenglan Huang (Huang) worked for Chen as a prostitute in multiple cities across the United States and is familiar with how he operated. She is expected to testify that Chen instructed her, through their WeChat conversations, to charge customers $140.00 per hour or $180.00 per hour. She regularly interacted with Chen via WeChat with the same WeChat profile that others have identified as Chen’s. Chen instructed her to travel to different cities and arranged for her transportation and lodging. He instructed her to purchase gift cards with money that she made from the prostitution and send them to him in Canada.

Co-operating Witness 1 (C.W.-1)

[29] C.W.-1 is expected to testify that she is aware of Chen’s operation of supermatchescort.com along with others which advertised prostitution-related dates.

[30] She first talked with Chen in April 2018 while she was working independently to schedule prostitution-related dates for several women. C.W.-1 saw an advertisement that Chen had posted and reached out to him to ask whether Chen would help C.W.-1 with scheduling prostitution “dates” for women who were working for C.W.-1. Chen agreed to help C.W.-1 by supplying people to answer customer calls and schedule prostitution-related dates for C.W.-1. Chen also suggested cities in the U.S. where C.W.-1’s women might work.

Quixia Zhang

[31] Quixia Zhang (Q. Zhang) worked for Chen as a prostitute in South Dakota. Undercover police officers scheduled a “date” with Q. Zhang via the website linked to supermatchescort.com. Officers executed a search warrant on the hotel room to which they were directed by the dispatcher.

[32] Q. Zhang told the officers that in January 2019 while living in Atlanta she met “Pial” in a WeChat group and was offered the opportunity to make money by giving massages and having sex with customers. Pial would arrange for customers to come to Q. Zhang’s hotel room and pay her from which she was required to pay Pial a share of the money earned. He directed her to travel to a hotel in Sioux Falls, South Dakota where a hotel and a particular room in the hotel had already been reserved for her. All Pial’s communications were sent to her from Chen’s WeChat account. Fees had been worked out in advance with Pial and all of the customers paid her.

Test for Committal

[33] The issue in this matter is whether the evidence of conduct presented in the Record of the Case is sufficient to justify the committal of Chen for receiving a financial or other material benefit contrary to s. 279.02 of the Criminal Code.

[34] The test for determining the sufficiency of the evidence for extradition is the same test applied at a preliminary inquiry conducted under s. 548 of the Criminal Code to determine whether there is sufficient evidence to commit an accused for trial on the offence charged. In U.S.A. v. Sheppard, [1997] 2 SCR 1067 the Supreme Court set out the test for the court to determine as to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. In Republic of Argentina v. Mellino (1987), 33 CCC 3rd 384 the Supreme Court noted that the sole purpose of the extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed: see also U.S.A. v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462 at para. 120.

[35] In U.S.A. v. Ferras 2006 SCC 33, [2006] SCJ No. 33 the Supreme Court stated that the extradition judge in applying the Sheppard test may engage in a limited weighing of the evidence to determine whether there is a plausible case. When determining whether committal is justified under s. 29(1) the extradition judge has the discretion to give no weight to evidence that is either unavailable or manifestly unreliable such that it would be dangerous or unsafe to convict.

[36] In France v. Diab, 2014 ONCA 374 at para. 134 the Ontario Court of Appeal affirmed that in light of Ferras, the test for committal is made out where: there remains evidence available for trial that possesses indicia of threshold reliability on each essential element of the corresponding Canadian offence upon which a reasonable jury properly instructed could convict.

[37] In M.M. at para. 72 Cromwell J. observed as noted in Ferras, paras. 52-56 the extradition judge’s starting point in considering the s. 29(1)(a) inquiry is that the certified evidence is presumptively reliable and as stated in United States of America v. Anderson (2007), 2007 ONCA 84, 218 CCC 3rd 225 at para. 31 the presumption may only be rebutted by evidence showing “fundamental inadequacies or frailties in the material relied on by the requesting State”.

[38] In considering the test for sufficiency to remove evidence from consideration there is a high threshold of unreliability. Cromwell J. adopted the words of Doherty J.A. in Anderson:

. . . it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the s. 29(1)(a) inquiry.

[39] As long as there is some direct evidence of the essential elements of the Canadian offence specified in the ATP, or some circumstantial evidence from which a trier of fact could reasonably draw an inference of guilt the extradition judge must commit.

Elements of the Offence Identified in the ATP – Section 279.02

[40] The offence for which Chen is sought for prosecution in the United States is identified in the ATP as s. 279.02 of the Criminal Code which provides as follows:

Section 279.02 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under s. 279.01(1) which lists the offence of trafficking in persons:

Section 279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence. . .

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.

(3) For the purposes of subsections (1) and 279.011(1), evidence that a person who is not exploited lives with or is habitually in the company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation.

[41] Exploitation is defined under s. 279.04(1):

For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

(2) In determining whether an accused exploits another person under subsection, (1) the Court may consider, among other factors, whether the accused

(a) used or threatened to use force or another form of coercion;

(b) used deception; or

[42] Recently in R. v. Sinclair, 2020 ONCA 61, [2020] O.J. No. 364 at paras. 10-15, the Ontario Court of Appeal succinctly set out the elements of s. 279.01 as follows:

[10] “The first element of the offence is an action by the accused, who must be a person who “recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of the person.” This court explained the meaning of “influence” in this context in R. v. Gallone, 2019 ONCA 663, 147 O.R. 3rd 225, at para. 47:

Consistent with Perreault, I would define “exercises influence” over the movements of a person for the purposes of s. 279.01(1) as something less coercive than “exercises direction”. Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it. [Footnote omitted]

[12] The second element is that the accused’s actions must be for the purpose of exploiting or facilitating the exploitation of the complainant. Actual exploitation is not required. The focus is on the accused’s state of mind. Where exploitation arises on the facts, “inferring that the accused’s purpose was to exploit the victim will usually be a relatively straightforward task”: Gallone, at para. 54; R. v. A.A. 2015 ONCA 558 237 C.C.C. 3rd 377 at para 87.

[13] The third element is met if the accused causes the complainant to provide or offer to provide a service. Again, there was no dispute that the complainant provided and offered to provide services as a sex trade worker.

[14] The fourth element is that the accused so causes the complainant to provide or offer a service by “engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service”. Actual exploitation is not necessary. The fourth element is assessed on an objective basis. Safety includes protection from psychological harm: A.A., at paras. 71-73; Gallone, at paras. 53-54.

[15] Circumstances that might be relevant when assessing whether conduct could reasonably be expected to cause a complainant to fear for their safety might include:

• the presence or absence of violence or threats

• coercion, including physical, emotional or psychological

• deception

• abuse of trust, power, or authority

• vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources

• isolation of the complainant

• the nature of the relationship between the accused and the complainant

• directive behavior

• influence exercised over the nature and location of services provided

• control over advertising of services

• limitations on the complainant’s movement

• control of finances

• financial benefit to the accused,

• use of social media to assert control or monitor communications with others

[43] The position of Mr. Chen is that he should not be committed for extradition because firstly, the principle of double criminality cannot be complied with due to the fact that prostitution, which is at the heart of both the Record of the Case and the U.S. indictment, while illegal in the United States is legal in Canada.

[44] Secondly, not all the elements of the Canadian offence alleged against Mr. Chen under s. 279.02 of the Criminal Code are sufficiently made out to the level required by s. 29(1)(a) of the Extradition Act. Aspects of the evidence cited in the ROC are manifestly unreliable.

Double Criminality

[45] Under the principle of double criminality, extradition is permitted when the conduct underlying the foreign offence, if it had occurred in Canada would constitute an offence in Canadian law. Further, the function of an extradition hearing is to determine whether the domestic component of double criminality is met. The essential issue is to consider whether the evidence summarized in the Record of the Case reveals conduct that would justify committal for a crime listed in the ATP if it had occurred in Canada. (See Canada (Justice) v. Fischbacher, 2009 SCC 46 at paras. 4 and 35; see also McVey v. United States of America, 1992 CanLII 48 (SCC), 1992] 3 SCR 475 at pp. 527-28).

[46] In McVey. La Forest J. at pp. 527-28 stated:

The extradition judge in Canada, on the other hand, is concerned with whether the underlying facts of the charge would, prima facie, have constituted a crime . . . if they had occurred in Canada. That is what is meant by saying that double criminality is conduct based.

[47] Accordingly, if the extradition judge concludes that the impugned conduct amounts to a criminal offence in Canadian law the domestic component of double criminality is satisfied, and the person sought must be committed for extradition.

[48] Mr. Chen contends that it is simply a case about prostitution. He acknowledges that he had a role as a facilitator, coordinator and dispatcher in making arrangements for women to provide prostitution services. There is “no question”, as stated by counsel in submissions, he was involved in the business side of prostitution. However, while prostitution is illegal in the United States, which is why they want him, it is legal in Canada. As observed by McLachlin C.J. in Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 1: “it is not a crime in Canada to sell sex for money”.

[49] Counsel argued that the charges Mr. Chen faces in the United States involve carrying on a “business enterprise” involving prostitution offences from on or about August 21, 2015 through to November 15, 2018. The conduct he was involved in was making necessary arrangements over the internet from Canada for prostitution dates to take place in American cities. Further, the U.S. indictment does not assert exploitation or human trafficking of women, rather the claims are that his conduct was “with intent to promote, manage, establish, and carry on acts to facilitate the promotion, management, establishment, and carrying on of an unlawful business, namely a business enterprise involving prostitution offences . . .”.

[50] Simply put, the essence of his offence in the United States he argues is prostitution, not human trafficking. Moreover, the Record of the Case makes it clear that Mr. Chen had no physical contact or hands-on connection with the women involved. In fact, he was thousands of miles away providing services via the internet from Canada.

[51] Initially, the Authority to Proceed prepared in this matter referenced s. 286.2, “receiving material benefit from sexual services”. To address the concern the original ATP was replaced with another that cited, “receiving a financial or other material benefit contrary to s. 279.02”, which addresses human trafficking in its various forms as delineated in s. 279.01 and 279.04 of the Criminal Code.

[52] It is not necessary that the Canadian offence described in the ATP “match” the foreign offence for which the person is sought or surrendered in name or in terms of its constituent elements; it is the essence of the offence that is important. Under the Extradition Act, ss. 15(1) and (3)(i)(a), the Minister satisfies himself that the conduct alleged described in the extradition request is criminal in the foreign jurisdiction, and if so, issues the ATP pursuant to s. 15. It is for the extradition judge to assess the domestic component of double criminality by determining whether the impugned conduct would amount to a criminal offence in Canadian law.

[53] The essence of the offence cited in the ATP is not prostitution. The conduct described which grounds the essence of the offence cited is the exploitation of other persons and human trafficking for a material financial benefit.

Reliability

[54] Mr. Chen’s argument as to the sufficiency of the evidence in the ROC is twofold. First, he contends there is some inconsistency with the information ROC and information contained in a document referred to as a “Verification” prepared by Special Agent Piniewski, which counsel produced in his response materials and requested the court to take into consideration. It sets out in greater detail the information obtained in the course of the investigation into the Chen STO. Second, he argues there is a failure to source certain references in the ROC set out in quotation marks, and others which are emphasized by italicization.

[55] It should be noted that the document referred as a Verification is not part of the ROC as certified, and its formal admission was not sought by Mr. Chen’s counsel during the hearing. However, it was referenced in both his written and oral submissions. As it is certified by SA Piniewski and it is the basis for the summary of her anticipated evidence in the ROC for the purposes of this hearing it will be accepted as reliable pursuant to ss. 29 (1) and 32 of the Extradition Act.

[56] Counsel for Mr. Chen contends that there is an inconsistency because in the ROC paragraphs 6 and 10 SA Piniewski refers to the subscriber of supermatchescort@gmail.com as being Mr. Chen, whereas in the Verification, paragraphs 74-80 the subscriber is identified as Weixuan Zhou of China.

[57] However, in my view it is not an inconsistency, but rather a misinterpretation of the ROC and the Verification by counsel. The ROC refers to Chen as the subscriber of supermatchescort@gmail.com, as does the Verification at paragraph 28. It is an email account used by Chen linked to supermatchescort.com and associated domains. Whereas the very detailed Verification states at paragraph 77 that the subscriber of supermatchescort.com domain (one of twenty-five) is Weixuan Zhou, an internet domain associated to the Chen STO through the email account supermatchescort@gmail.com.

[58] Mr. Chen is the subscriber of supermatchescort@gmail.com and Mr. Zhou subscriber to supermatchescort.com.

[59] Whether or not there is an inconsistency in subscribership of the domain name or email account, in my view it appears to be of no moment as a matter that would render the ROC as being manifestly unreliable. The 45-page overview of the investigation recounted in the Verification is consistent with the ROC summary as to the anticipated evidence available to the U.S authorities as a result of warrant searches and anticipated testimony of witnesses from those involved who dealt directly with Mr. Chen over the internet that he derived financial and material benefit in providing prostitution services.

[60] The second concern raised by Mr. Chen is based on the use of words, particularly with respect to L.P. Zhang’s anticipated evidence, set out in quotation marks – such words and phrases as “match maker”, “white man”, “friends”, “test the goods” - because as described in the ROC she had extremely limited English.

[61] Further, there are instances of references in the ROC being italicized, such as:

• “dates” who were instructed to go where Huang already was.

• Chen instructed her (Huang) what to charge.

• Q. Zhang spoke to “Pial”/Chen who required her to pay him a share of the money earned from the customers.

• Pial directed her to travel to a particular hotel and room.

[62] Counsel submits that to use quotations and descriptive phrases without attribution are an obvious and deliberate attempt by those who prepared the ROC to mislead as to the available evidence and “to fill in blanks”.

[63] Whether the quotations are provided directly from the witnesses, even though they may have limited English skills, or used as an emphasis or interpretation of the witnesses anticipated evidence, these are matters for trial when the witnesses are called to testify and assessed by the trier of fact. The ROC is a summary of the anticipated evidence available, and the extradition hearing is not a trial. There is nothing to suggest that the ROC is manifestly unreliable in the summarization of the evidence available to the U.S. authorities from the witnesses and the documentation obtained through search warrants in the investigation.

Human Trafficking – Conduct Alleged

[64] The Crown’s position is that the evidence in the ROC overwhelmingly demonstrates that Chen trafficked in female sex workers and received a financial benefit as a consequence of activity that had it been conducted in Canada would amount to an offence under s. 279.02. There is some evidence of the four elements of the offence as set out in R. v. Sinclair.

[65] Chen exercised control, direction and influence over the movement of women he recruited and transported to various destinations in the United States. The evidence cited in the ROC shows that Chen had direct involvement with supermatchescort.com, a website that advertised for sex trade workers. Based on the expected evidence of L.P. Zhang, Q. Zhang and Huang, Chen used WeChat to communicate with women and to bring them into the business. Co-operating Witness 1 (C.W.-1) is expected to testify according to the ROC that Chen posted advertisements seeking women to work as prostitutes and ran the supermatchescort.com, along with other linked sites advertising prostitution-related dates.

[66] L.P. Zhang is expected to testify that Chen through WeChat messages promised to help her acquire legal status in the United States and led her to believe that he would act as a matchmaker for her and help her find a white man to marry in the U.S. Q. Zhang had contact with Chen, referred to as Pial, in WeChat messages in which he offered her the opportunity to make money giving massages and more. Subsequently she learned that more included having sex with customers. Chen admitted to CBP Officer Joshua Barkley that he posted advertisements for escorts on multiple websites and handled calls and arranged dates for escorts for which he received eight to ten percent of the money earned by escorts.

[67] There is evidence that Mr. Chen exercised control, direction and influenced the movements of the women involved. L.P. Zhang said that Chen instructed her to travel around the U.S. to various hotels and booked hotels and rooms in various cities for her. Chen told her that she must perform sex acts and/or engage in sexual intercourse with men so that they could “test the goods” and decide whether they wanted to marry her. Huang was told by Chen to travel to different cities and that he would make the travel and lodging arrangements. L.P. Zhang and Huang will testify that Chen told them what they were to charge customers. L.P. Zhang, Huang and Q. Zhang were all required by Chen to send portions of the money earned from prostitution services to him by money orders, transfers to Chen’s Bank of America account or gift cards.

[68] Special Agent Piniewski will testify that she executed a search warrant on Chen’s Hotmail account, “chen_zong_tao@hotmail.com” received numerous emails from Zong Tao Chen using email address supermatchescort@gmail.com and website escorts-canada.com. Also revealed were numerous emails over the past two years detailing records of money transfers from numerous individuals with Asian female names to Chen. The Hotmail account also revealed numerous emails containing hotel reservations for females with Asian female names across the United and numerous emails containing flight and bus reservations made in names of Asian females across the United States and for travel to destination cities in which women were advertised via the supermatchescort.com website.

[69] The ROC reflects evidence that Chen intended through the conduct reflected in the anticipated evidence to exploit or facilitate the exploitation of the women.

[70] Chen argued that anticipated witnesses such as Huang, Q. Zhang and C.W.-1 all appear to have been willing participants in providing prostitution services.

[71] However, there is the evidence of L.P. Zhang who says that when she told Chen she no longer wanted to participate he told her that there was no way out, she was “wasn’t clean anymore” and that if she ever wanted a boyfriend and a green card she had to continue to engage in acts of prostitution. Further, he told her that he knew where her family was in China, which she took as a direct threat to her family that would be carried out if she stopped working for him.

[72] Such comments could reasonably be expected to cause her to believe that her safety or the safety of her family would be threatened if she failed to continue to provide sexual services.

[73] As noted in R. v. A.A., 2015 ONCA 558, s. 279.04 instructs that a person exploits another if they cause that other person to provide labour by doing something that in all the circumstances could reasonably be expected to cause the other person to believe that their safety or the safety of persons known to them would be threatened if they failed to provide the labour. On a straight up reading of the definition of exploitation, there are three conclusions:

the expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element;
the determination of the expectation is to be made based on all of the circumstances; and
the person’s safety needs not actually be threatened.

[74] In essence, for exploitation, an accused’s conduct must give rise to a reasonable expectation of a particular state of mind in the victim.

[75] The term “safety” that appears in s. 279.04 is not limited to a state of being protected from physical harm, but also extends to psychological harm.

[76] It would be reasonable to find that L.P. Zhang, a Chinese national, who lacked status in the U.S., would feel threatened if she did not continue providing prostitution services. She would not receive a green card. Moreover, Chen allegedly said he knew where her family was in China, which in the circumstances could reasonably be considered a threat to them.

Summary

[77] The evidence summarized in the ROC demonstrates that Mr. Chen was the knowing recipient of money received as a result of sex work performed by women recruited by him and his organization through advertisements. He admitted to Customs and Border Patrol and Homeland Security officers that he arranged dates for escorts and received eight to ten percent of the money earned by them. L.P. Zhang, Huang and Q. Zhang, all indicated that they paid Chen portions of money made by them in performing sexual services. L.P. Zhang transferred money to his Bank of America account ending with number 9683 and to an account in the Chase Bank, held in the name Rui Li, Chen’s ex-wife. Huang spoke of sending gift cards to Chen in Canada. Both L.P. Zhang and Huang indicated that Chen set the rates and advised them of the rates the men were to pay for their services.

[78] Further, the forensic accountant of the FBI on examination of Chen’s bank account records in the United States, found that his Bank of America account ending with number 9683 consistently received various amounts of cash deposits and transfers from senders with female Asian names from May of 2016 through to February of 2019 from numerous cities around the United States. Within days cash deposits were then withdrawn from his Bank of America account at locations in Canada.

[79] There is evidence Mr. Chen had influence over the women who provided sexual services and from whom he received financial and material benefits. There is evidence that one of the women felt threatened by comments said to have been made by Chen that if she did not continue to provide prostitution services her status in the U.S. and safety of her family could be affected.

[80] I am satisfied that there is some evidence of each of the essential elements of the offence of s. 279.02 as specified in the ATP, from which a trier of fact could reasonably infer guilt.

[81] In the result, the committal of Zong Tao Chen, aka Zongtao Chen and aka Mark Chen into custody to await extradition to the United States of America is ordered.

A.J. O’Marra J.

Released: June 7, 2021

The Attorney General of Canada on behalf of the United States of America v. Chen, 2021 ONSC 4344

Case Summary

REASONS FOR DECISION

Law Enforcement Evidence

Civilian Witness

Lan Ping Zhang

Chenglan Huang

Co-operating Witness 1 (C.W.-1)

Quixia Zhang

Test for Committal

Elements of the Offence Identified in the ATP – Section 279.02

Double Criminality

Reliability

Human Trafficking – Conduct Alleged

Summary

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 2