Court File and Parties
COURT FILE NO.: CR-21-388-00MO DATE: 2022-01-04 ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE EXTRADITION ACT, S.C. 1999, c. 18, AS AMENDED
BETWEEN: THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA – and – KYLE JONES
Before: The Honourable Justice Catrina D. Braid
Counsel: Kiran Gill, Counsel for the Requesting State/Respondent Michelle Psutka, Counsel for the Person Sought/Applicant
Heard: November 12, 2021
Ruling on Disclosure Motion
I. Overview
1The United States of America seeks the extradition of Kyle Jones to stand trial on charges corresponding to the Canadian offence of luring a child, contrary to section 172.1(1) of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Jones intends to bring a motion to stay the extradition proceedings due to abuse of process. He has brought an application seeking disclosure of a copy of the hard drive seized from him and of communications between Canadian and American authorities regarding the investigations into his online activities.
2Mr. Jones submits that the disclosure is necessary to support his abuse of process allegations, which are based on two arguments: 1) that the authorities intentionally delayed his extradition to ensure maximum incarceration; and 2) that committal will allow for perpetual piecemeal prosecution for conduct committed from the same place and over the same time period, when Canadian authorities had the evidence and jurisdiction to domestically prosecute him in relation to all violations discovered on the hard drive.
3The issue on this application is whether the applicant is entitled to a disclosure order.
4On December 17, 2021, I provided a brief oral summary of my decision dismissing the application, with written reasons to follow. These are my reasons.
II. Background
5It is alleged that, between 2014 and 2015, Mr. Jones communicated with a 14-year-old female in Pennsylvania who I shall refer to as “J”, via multiple social media sites. He asked her to send sexually explicit nude images and videos of herself. Through threats and coercion, Mr. Jones maintained this exchange. He told the complainant that he knew where she lived and threatened to come to her house. He sent her a message containing her correct address. He also told her that he knew where she went to school and that he would find her. On one occasion, he instructed her to cut herself on Skype because he said that she was “trash”. When she refused to cooperate further, he carried out his threats of disseminating her sexually explicit photos to her mother and to her friends over social media.
6Mr. Jones was approximately 23 years old at that time. He is a Canadian citizen.
7In 2015, Canadian authorities began an investigation after a victim in Saskatchewan reported that a male had extorted sexually explicit images from her online by threatening to post online the images already in his possession. That same year, the Federal Bureau of Investigation (“FBI”) also commenced an investigation involving two young complainants in California who made similar allegations. Canadian authorities were aware of and cooperated with the FBI investigation.
8In August 2015, the Niagara Regional Police Service (“NRPS”) conducted a search warrant at the applicant’s residence and seized his hard drive. The hard drive contained naked images and videos of numerous minor females engaged in sexually explicit activity. Many of the videos depicted females who were in obvious distress and who were being instructed to perform sexual acts by the applicant.
9The applicant was ultimately charged in St. Catharines, Ontario, in relation to the offences committed against the complainant in Saskatchewan. In 2016, he pled guilty to child luring and distribution of child pornography. On March 1, 2017, he was sentenced to two years less a day, taking into account 200 days of pretrial custody. He also received 3 years of probation as well as a s. 161(1) prohibition order for 15 years. The applicant was released on parole in November 2017. His probation began in March 2019 and will be completed in March 2022. While on bail, parole and probation, the applicant was not charged with breaching any conditions.
10After the applicant pled guilty, the FBI obtained the hard drive seized from the applicant’s computer. When the FBI reviewed it, they discovered evidence relating to J. According to the Record of the Case (“ROC”) that has been provided as part of the extradition proceedings, the hard drive allegedly contained folders labelled J and Princess J. These folders contain images of a young complainant engaged in sexually explicit conduct, as well as Skype videos in which the applicant instructs her to masturbate while she is crying. In one of the Skype videos, the applicant can be seen briefly on the recording.
11On November 28, 2017, the complainant J, who resides in Pennsylvania, identified the applicant as the individual who had exploited her online. The ROC does not outline any further investigatory steps taken over the next three years. On December 7, 2020, J again identified the applicant.
12The allegations made by the complainant in the Canadian proceedings are similar to those involving the complainant J in Pennsylvania in the following ways:
i. They occurred in 2014 to 2015 while the applicant was in Ontario; ii. The applicant initially commenced communication with the complainants over Kik messenger; iii. He obtained sexually explicit material from them and then threatened to distribute their explicit material when they refused to send more; iv. He instructed the complainants to perform sexual acts over Skype; v. He posted the complainants’ material to social media applications using Dropbox; and vi. He used the alias “Jake”.
13It appears that the allegations made by the complainants in California share many of the same similarities. At this time, the status of the FBI investigation related to the California complainants is unclear. The U.S. has not sought the applicant’s extradition on any offences against the California complainants.
14On January 27, 2021, the U.S. certified its Record of the Case for prosecution in support of an extradition request to have the applicant face trial in Pennsylvania with respect to his alleged exploitation of the Pennsylvania complainant. On February 2, 2021, the Minister of Justice issued an Authority to Proceed pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18, authorizing the Attorney General of Canada to seek an order for the applicant’s committal for extradition for prosecution on the basis of the Canadian offence of child luring contrary to s. 172.1 of the Criminal Code.
15The applicant was arrested on March 23, 2021. If convicted in Pennsylvania, Mr. Jones faces a mandatory minimum sentence of 15 years and may expect to receive a sentence of 30 to 62 years in custody.
III. Analysis
A. Overview of the Extradition Process
16Extradition is primarily a function of the executive branch of government and a product of international agreements between states with respect to the surrender of persons who are alleged to have committed crimes in other countries. According to the Extradition Act, the functional responsibilities with respect to each stage of extradition are divided between the judiciary and the executive. The phase involving the potential committal of the fugitive is the responsibility of the judiciary. The phase involving the potential surrender of the fugitive to Canada's extradition partner is the responsibility of the executive: see United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 at para. 27.
17The Minister of Justice (“Minister”) and extradition hearing judge occupy distinct roles under the Extradition Act. Each operates independently of the other and neither intrudes into the other's area of responsibility: see Germany v. Schreiber at para. 72.
18Extradition serves pressing and substantial Canadian objectives: protecting the public against crime through its investigation; bringing fugitives to justice for the proper determination of their criminal liability; and ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law: see M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 15.
19There are three stages to the extradition process in Canada:
i. The Authority to Proceed
20After receiving an extradition request from an extradition partner, the Minister must determine, pursuant to s. 15(1) of the Extradition Act, whether to issue an authority to proceed. This authorizes the Attorney General to seek, on behalf of the extradition partner, a court order of committal respecting the person sought to be extradited, and commences the extradition process in Canada.
ii. The Role of the Extradition Judge
21Upon receipt of the authority to proceed from the Attorney General, a judge holds an extradition hearing, pursuant to s. 24(1) of the Extradition Act. The limited statutory role of the extradition judge is to assess the evidence to determine whether there is admissible evidence of conduct that, had it occurred in Canada, would justify committal for trial for the alleged offence and that the person sought is the person before the court. If both are answered in the affirmative, the extradition judge is to commit the person sought to await surrender.
22The committal hearing involves the same test as a preliminary inquiry. The extradition judge will generally order the committal of the person sought to be extradited if the judge concludes that there is admissible evidence upon which a reasonable jury, properly instructed, could convict the person sought. The extradition judge is permitted, however, to remove evidence from judicial consideration if the judge is satisfied that the evidence is so manifestly unreliable or defective that it should be disregarded and given no weight: see United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77 at paras. 48 and 59.
23It is not the function of the extradition judge to consider the means by which the foreign officials may have prepared the evidence for the extradition hearing. Nor is it the judge's function to weigh the ultimate issue as to the effect of any delay on the trial in the jurisdiction of the extradition partner. Nor is it open to the extradition judge to consider the application of any defences that might be raised at trial by the person sought: see Argentina v. Mellino, [1987] 1 S.C.R. 536, at paras. 28-38; United States of America v. Lépine, [1994] 1 S.C.R. 286, at paras.10 and 20.
24Extradition is meant to be an expeditious process by which Canada surrenders persons sought to its partner nations in prompt compliance with its international obligations. The hearing is not a trial, nor should it be allowed to become a trial, as though it were a domestic criminal proceeding: see Germany v. Schreiber, at para. 57.
25If the extradition judge orders committal, the person sought has a right of appeal against this decision to the Court of Appeal.
iii. The Role of the Minister Once Committal is Ordered
26In the event that the judge orders the committal at the conclusion of the extradition hearing, the next step of the process permits the Minister to order the surrender of the person sought to the extradition partner. This next step in the extradition process is political in nature: see Kwok, at para. 32.
27Under the provisions of the Extradition Act, there are a number of considerations that the Minister is obliged to assess in making this decision. Pursuant to s. 43(1) of the Act, the person committed may make submissions to the Minister on any ground that would be relevant to the Minister in making the decision as to whether to order surrender.
28There are two statutorily enumerated considerations for the Minister that could be addressed in submissions by the applicant. Pursuant to s. 44(1)(a) of the Act, the Minister shall refuse to make a surrender order if satisfied that the surrender would be unjust or oppressive, having regard to all the relevant circumstances. Under s. 47(a) of the Act, the Minister may refuse to make a surrender order if satisfied that the person sought to be extradited would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction.
29In deciding whether or not to order surrender, the Minister must consider whether surrender would violate the person's rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. The applicable test is whether ordering surrender would "shock the conscience of Canadians" or whether extradition would place the person in an "unacceptable" situation. In making this assessment, the Minister must consider and balance all relevant factors, such as Canada’s international treaty obligations as well as the need to respect the fugitive’s constitutional rights: see United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34; United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 at paras. 63-69; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.
30Many appellate court decisions have stressed the important division of responsibility in relation to potential issues under the Charter. The power is statutorily vested in the executive to order the surrender of the person sought. It is the Minister who is obliged to consider the potential surrender of the person sought against arguments that such surrender would amount to an abuse of process, place them in double jeopardy, or otherwise violate the guarantees in the Charter. This includes concerns about the impact of a potential sentence on the person sought or concerns about the appropriate forum for prosecution. When the Minister has jurisdiction under the Extradition Act to decide an abuse of process argument in determining whether to issue a surrender order, it is not for the courts to "pre-empt" the Minister in considering these issues by prematurely interfering in the responsibility of the executive: see Mellino, at para. 37; Kwok, at paras. 35-37; United States of America v. Logan, 2015 NBCA 60 at para. 31, leave to appeal refused [2015] S.C.C.A. No. 502.
31If the Minister orders the surrender of the person sought, this decision may be the subject of an application for judicial review in the Court of Appeal. The discretion at the heart of any such decision to surrender will attract a high degree of deference on such a judicial review application. As the Supreme Court of Canada noted in Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41, the Minister has the expertise and the obligation to ensure that Canada complies with its international commitments and is in the best position to determine whether the factors weigh in favour of or against extradition. However, much less deference is due to the Minister in assessing the constitutional rights of the person sought: see Kwok, at paras. 93-94; Stewart v. Canada (Minister of Justice) (1998), 131 C.C.C. (3d) 423 (B.C.C.A.), at paras. 17-18.
B. Scope of Extradition Judge’s Jurisdiction to Consider Abuse of Process
32The protection of the liberty of the person sought is one of the most important functions of the extradition hearing: see United States of America v. Dynar, [1997] 2 S.C.R. 462 at para. 121.
33The extradition judge has limited jurisdiction under the Charter, which is only to be exercised in exceptional cases. Barring obvious or urgent circumstances, judges should be reluctant to pre-emptively interfere with the manner in which the executive may fulfill its responsibilities. There may conceivably be situations where it would be unjust to surrender a person sought either because of the general condition of the governmental and judicial apparatus or because an individual may be subjected to oppressive treatment. However, these decisions are primarily within the authority of the executive, who may be able to obtain sufficient assurances from the foreign country to ensure compliance with the requirements of fundamental justice. The court must tread with caution in this area: see Mellino, at paras. 33-37.
34In some exceptional circumstances, an extradition judge may stay the extradition proceedings against the person sought on the basis of an abuse of process, where the impugned conduct of the foreign state taints the integrity of the extradition court. The fact that the executive may have the statutory jurisdiction to refuse to issue a surrender order for this same reason does not deprive the extradition court of the jurisdiction to protect its own integrity by staying proceedings on the ground of abuse of process: see United States of America v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449 at paras. 31-52, leave to appeal refused, [2011] S.C.C.A. No. 316; R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.), at paras. 50-52.
35Section 25 of the Extradition Act gives an extradition judge jurisdiction to consider Charter issues that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process. Where a stay of proceedings is sought, there should be a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself. Such a nexus has been found to exist where the evidence introduced at the committal hearing was obtained through the misconduct of the requesting state (Khadr), where threats or inducements are made to force the person sought to abandon the right to a committal hearing (Cobb) and where the committal hearing itself was the result of misconduct by the requesting state (United States of America v. Tollman): see United States of America v. Lane, 2014 ONCA 506, 121 O.R. (3d) 721, at para. 45, leave to appeal refused [2014] S.C.C.A. No. 425.
36When the person sought raises concerns about the decision not to prosecute them in Canada, these concerns are raised in the context of s. 6 of the Charter, which grants every Canadian the right to remain in Canada. There are multiple factors that could impact the discretion of Canadian authorities in deciding whether or not to prosecute, requiring consultation between the appropriate authorities in the two countries. The objectives underlying extradition are pressing and substantial and are sufficiently important to make it a reasonable limit within the meaning of s. 1 of the Charter. Where a decision has been made not to prosecute a person in Canada, extradition is a reasonable limit on the Charter right in s. 6(1). It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses and the persons most interested in bringing the criminal to justice reside: see United States of America v. Cotroni, [1989] 1 S.C.R. 1469 at para. 34.
37A stay of proceedings for abuse of process is rarely warranted. This is an exceptional remedy reserved for the clearest of cases involving the most egregious forms of state conduct or other abuse, where the continuation of the judicial proceedings would irreparably prejudice the integrity of the justice system. Allegations of abuse by state actors are grave matters and should not be given any credence without concrete proof. Apart from the Charter, the extradition judge has an inherent and residual discretion at common law to control its own process and prevent its abuse, when the proceedings are unfair to the point that they are contrary to the interests of justice: see Logan, at para. 19, leave to appeal refused [2015] S.C.C.A. No. 502; Cobb at para. 37.
38The extradition judge has jurisdiction over abuse of process allegations even where the conduct alleged does not impact the fairness of the committal hearing, but rises to the level that would offend the principles of fundamental justice and the community’s sense of fair play and decency: see Khadr, at para. 29.
39There are two categories of cases that can constitute an abuse of process: i) state misconduct that that is directly and inextricably related to the committal hearing and that implicates the fairness of the committal hearing, and ii) the residual category, unrelated to the fairness of the hearing, but where committing the person sought would violate the community’s sense of fair play and decency: see Cobb, at paras. 37-48; Khadr at paras. 23, 34 and 51.
40The extradition judge may stay committal proceedings under the residual category if committal would amount to an abuse of process or breach the principles of fundamental justice, no matter how fairly the proceedings are conducted. The residual power to stay proceedings is aimed at vindicating the court’s integrity and the public’s confidence in the legal process in the face of improper state conduct. The prosecution is set aside not on the merits, but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The jurisdiction to stay proceedings on the grounds of abuse of process lies at the heart of the court’s integrity and the independence of the judicial process: see Khadr at paras. 32 and 51.
41Even though an abuse of process may also call for a remedy at the ministerial stage, this does not oust the jurisdiction of the court to control its own process and preserve the integrity of the proceedings: see Cobb at para. 48.
42In this case, the abuse of process allegations engage the residual category only. The applicant asserts that the conduct of the Canadian and American authorities so offended the principles of fundamental justice and the community’s sense of fair play and decency as to disentitle them from pursuing committal.
C. The Test for Further Disclosure in the Extradition Context
43The approach to disclosure in extradition proceedings is fundamentally different to that of domestic criminal law. The ultimate guilt or innocence of the person sought for extradition is not an issue for the extradition court: see M.M. v. United States of America at paras. 62 and 83.
44A person sought for extradition is ordinarily not entitled to disclosure from the Requesting State beyond the evidence that it is relying on to establish its prima facie case. The principles regarding disclosure from R. v. Stinchcombe, [1991] 3 S.C.R. 326 do not apply: see Kwok at paras. 99 and 101.
45Before ordering the production of documents in support of allegations of state misconduct beyond the Record of the Case in extradition matters, the applicant must satisfy the following criteria:
i. the allegations must be capable of supporting the remedy sought; ii. there must be an air of reality to the allegations; and iii. it must be likely that the documents sought would be relevant to the allegations.
See Larosa, at para. 76.
46An applicant who alleges abuse of process or a failure by the Minister to adequately consider issues may find it difficult to obtain the evidence necessary to support that allegation. Much of the relevant information will be in the possession of the state against whom the allegations of misconduct are made. An applicant may not have access to that information without the assistance of the court and cannot be expected to describe with precision the contents of documents that they have never had the opportunity to examine. Requests for production will often lack particularity: see Larosa at para. 74.
47In considering whether the allegations are capable of supporting a stay of proceedings, the question is whether it is possible that the court will consider a stay to be the only appropriate remedy. If the court cannot rule out the possibility of a stay, then this prong is met: see India v. Sidhu, 2018 BCCA 25, 358 C.C.C. (3d) 494, at para. 23, cited with approval in United States v. Meng, 2019 BCSC 2137, at para. 49.
D. Is the Applicant Entitled to the Disclosure Order?
48I am not satisfied that the applicant has met any of the elements of the three-part test for disclosure set out in Larosa, for the following reasons:
i. The Allegations are Not Capable of Supporting a Stay of Proceedings
49The applicant states that, despite Canadian authorities having the evidence and jurisdiction to prosecute the applicant domestically for all offences discovered on his hard drive, he was charged and pled guilty in Canada only in relation to the Canadian victim. It was not until he had served his custodial time and was well into his three-year probation order that the Requesting State certified the ROC and requested his extradition. The applicant states that there was an inexplicable gap of three years, after J had identified the applicant, until his extradition was sought.
50The applicant submits that a stay should be imposed under the residual common-law category of abuse of process, where the alleged abuse does not affect the fairness of the committal hearing itself, but where committing the applicant to trial in the circumstances would violate the community’s sense of fair play and decency.
51The applicant’s abuse of process allegations fall into two categories: an allegation of intentional delay of extradition and an allegation of potentially perpetual piecemeal prosecution. I shall address each of these categories in turn.
1. Allegation of Intentional Delay of Extradition
52The applicant alleges that American authorities intentionally delayed the request for extradition to maximize his incarceration, and that Canadian authorities either assisted or were complicit in the intentional delay. He believes that the disclosure will reveal that the Canadian authorities colluded with U.S. authorities to maximize his incarceration.
53Counsel for the Attorney General states that it is a matter of practicality and respect for our judicial system that treaty partners usually wait until any barriers to extradition, including serving the custodial portion of a Canadian sentence, have been cleared. The applicant has not provided any cases that find an abuse of process when a Requesting State waited until a Canadian sentence has run its course before making an extradition request.
54In France v. Liang, the Court of Appeal for Ontario stated that the manipulation of the extradition process to cause delay in order to maximize incarceration would, if proven, constitute an abuse of process and could be said to disturb the community’s sense of fair play and decency. This obiter statement by the Court suggests that courts could find an abuse of process if there was evidence of manipulation of the extradition process in this fashion. Importantly, in that case, the Court found no evidence of state misconduct when Canadian authorities intentionally delayed acting on the request for a provisional warrant until Mr. Liang had completed serving the incarceration portion of his Canadian sentence: see France v. Liang, 2007 ONCA 741, 88 O.R. (3d) 12, at para. 18 and 22, leave to appeal dismissed [2007] S.C.C.A. No. 589.
55Several appellate courts have considered and rejected a delay in extradition as an abuse of process. It is not the role of the extradition judge to speculate about or to determine the reason for a delay in an extradition request. Canadian officials speaking to foreign officials does not give rise to the possibility of an abuse of process: see Liang, and United States of America v. Tyndall, 2021 ABCA 95, leave to appeal dismissed: [2021] S.C.C.A. No. 174.
56It is much more difficult to obtain a remedy for delay in an extradition proceeding than in a domestic prosecution because activities that cross national boundaries and involve different legal systems are inevitably complex. It is not the business of an extradition judge to review the actions of foreign officials in preparing the evidence for an extradition hearing. Nor is an extradition judge empowered to weigh the ultimate issue of whether delay will affect the trial in a foreign country: see Liang, at para. 28.
57The timing of the requesting state’s extradition request is a matter of government discretion, and the issue of any deliberate delay should be dealt with by the Minister of Justice as it is more appropriately within their discretion.
58It is difficult to imagine that a delay of three years while the person sought was serving a sentence in Canada would disturb the community’s sense of fair play and decency and/or result in a stay of proceedings. On the basis of the evidence before me, the delay issue is straightforward: the Americans simply allowed the Canadian process to take its course and then applied for extradition. This process would not shock the conscience of the community.
59I therefore conclude that the allegation regarding intentional delay of the extradition raised in this case is not capable of supporting a stay of proceedings.
2. Allegation of Potentially Perpetual Piecemeal Prosecution
60Even absent intentional conduct, the applicant submits that committal would shock the community’s conscience as it would permit the potentially perpetual piecemeal prosecution of the applicant for conduct committed over the same time and in the same place, when Canadian authorities had both the evidence and the jurisdiction to prosecute him domestically in one proceeding in relation to all victims discovered on the hard drive. The applicant states that Canada’s decision not to prosecute him in relation to all victims depicted on his hard drive was abusive because it now subjects him to piecemeal prosecution in foreign jurisdictions in perpetuity. He submits that fairness demands a choice rather than a splitting of jurisdictions, since the evidence in support of multiple prosecutions comes from the same source discovered at the same time.
61The applicant submits that, while this does not constitute double jeopardy as the charge relates to a different complainant, it is very close to double jeopardy. The applicant states that, if this court allows for committal to Pennsylvania, then California or another state may come next.
62In Tyndall, the accused was convicted in Canada of luring a child (a 9-year-old girl in Virginia) and possession of child pornography. He received a two-year sentence and was granted full parole in June of 2017. In October of 2017, the U.S. sought Mr. Tyndall’s extradition for the equivalent of child luring of a 14-year-old girl in Pennsylvania. There was some overlap of the time periods covered by the American charges and the Canadian charges. Mr. Tyndall alleged that he would be subjected to double jeopardy if committed to stand trial in Pennsylvania.
63Mr. Tyndall’s communications with the 14-year-old complainant in Pennsylvania formed part of the evidence found on his computer when searched. However, the accused was only convicted and sentenced in Canada for luring the 9-year-old and not the 14-year-old.
64The extradition judge considered whether the prosecution of Mr. Tyndall in two countries for similar conduct, where the evidence respecting the extradition matter formed part of the information in the hands of Canadian authorities at the time of his prosecution here, is so abusive that committal would shock the public’s conscience or offend the fairness and integrity of the extradition process. Mr. Tyndall was sought for extradition for a different offence from the Canadian charge, for which he had been tried and punished. The extradition judge denied the application for a stay of proceedings based on abuse of process, which was upheld by the Court of Appeal of Alberta, with leave to appeal to the Supreme Court dismissed.
65In the case before this Court, the applicant is not sought for prosecution of the same offence for which he was tried and punished in Canada. Offenders can be tried for multiple offences arising out of the same time period, even when the timing of disclosure means that the offender had already paid his debt to society. If a new complainant comes forward after an accused has been tried for the same offence, the accused must still account for the crime against the second victim: see Tyndall, at paras. 38 and 63.
66Although the allegations in this case before the Court regarding perpetual prosecution are framed slightly differently, the facts are very similar to the facts in Tyndall. The reasoning in Tyndall is a complete answer to the applicant’s submissions regarding perpetual prosecution. An accused can be tried separately for crimes occurring over the same time and in the same place, even when Canadian authorities had both the evidence and the jurisdiction to prosecute him domestically in one proceeding in relation to all victims discovered on the hard drive.
67The applicant’s submission is based on the indefensible proposition that he had the right to plead guilty in Canada to all charges arising out of his activities of child luring and child pornography, regardless of where the victim resides. He had no such right. Persons, such as the applicant, whose crimes know no borders run the risk that any of the countries harmed by their actions may justifiably demand that they answer for their actions in that country through the extradition process: see Liang, at para. 24.
68Even if prosecuting the applicant in Canada was a possible option, that does not, by itself, bar extradition. The Minister of Justice must decide whether prosecution in Canada is realistic or an equally effective option, and also whether it is a desirable option having regard to our country’s international obligations and a legitimate request from one of our extradition partners: see Liang, at para. 38.
69Even if sufficient evidence exists on the hard drive for the applicant to be prosecuted in Canada, he has no right to demand that he be prosecuted in Canada nor does the Court have the right to interfere with any decision as to the jurisdiction of where he will be prosecuted. He has no right to require Canadian authorities to exercise their discretion in a way so as to allow him to affect a global resolution in Canada. If the allegations are proven, the applicant knew that he was committing cross-border crimes via the internet with young victims in different countries.
70The applicant’s submissions are driven by the fact that he would likely serve a less severe sentence in Canada for his offences than if extradited. While it is clear that the sentence in Pennsylvania will certainly be longer than the one that the applicant received in Canada for the same offence, it is the duty of the Minister to consider such matters, and the Court should not interfere.
71The applicant states that the decision not to prosecute him for all of his conduct in Canada, including conduct with respect to victims in other countries, leaves him exposed to prosecutions in perpetuity. This is an issue that is properly considered by the Minister under s.44(1)(a) of the Act at the surrender stage.
72The applicant’s argument that there is the potential for piecemeal prosecutions in perpetuity arises from the concern that, once the current charges in the U.S. have been completely dealt with, the U.S. may seek to extradite him on the charges related to the complainants in California. At this time, the status of the FBI’s initial investigation into two victims in California is unknown. This is the first time that the U.S. has sought the applicant’s extradition. It is premature and speculative to suggest that the applicant will be the subject of perpetual piecemeal prosecution.
73When there is a claim that the person sought should have been prosecuted in Canada, it is for the Minister to decide whether granting the foreign state's request of extradition is appropriate. The ability of Canada to prosecute the offences remains but one factor in this inquiry, and may be offset by other factors, such as where the prosecution may most efficaciously be carried out. Extradition is not to be avoided at all costs: see Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 at para. 23.
74Extradition cases, by their very nature, often involve trans-border crimes which may result in overlapping domestic and foreign prosecutorial jurisdiction. The claim of perpetual prosecution is closely tied to the submission that Canadian authorities should have prosecuted the applicant for all conduct in Canada. This argument is similar to the double jeopardy argument that was unsuccessfully advanced in United States of America v. Qumsyeh, 2015 ONCA 551, 126 O.R. (3d) 641, leave to appeal refused, [2015] S.C.C.A. No. 370.
75The applicant is entitled to seek disclosure from the Minister regarding the information and materials that he seeks from the court in this disclosure application. If and when a decision is made by the extradition judge that there should be a committal order in this case, the applicant would be entitled to apply to the Minister to secure the disclosure that he now seeks. The Minister is obliged to ensure that a fugitive has adequate disclosure and a reasonable opportunity to advance his or her position in relation to whether or not a surrender order should issue: see Kwok, at paras. 104-107.
76I find that the allegations are incapable of attracting a stay. I am satisfied that none of the arguments advanced on behalf of the applicant could possibly succeed.
ii. The Applicant Has Not Established an Air of Reality to the Allegations
77The court need not decide whether the abuse of process allegations will ultimately succeed, only whether there is an air of reality to the allegations. The air of reality requirement is met where there is some realistic possibility that the allegations can be substantiated if the requested orders are made: see Larosa, at para. 78.
78The air of reality requirement has been described as a relatively low threshold that is not demanding and is easy for the applicant to meet. However, the threshold will not be met by mere conjecture or speculation: see Meng, at para. 52.
79The fact that there may be innocent explanations for the alleged abusive conduct does not oust an air of reality where the allegations are not frivolous: see Tollman, at paras. 24-25.
80In the case before the Court, the only evidence proffered by the applicant is the three-year delay in the extradition request. The applicant is unable to point to any conduct by authorities to support the inference that American officials intentionally delayed the request for extradition to maximize his incarceration and that Canadian officials were either complicit or assisted with this goal. The evidentiary record does not disclose an air of reality to the claims that the American and Canadian authorities manipulated the extradition proceedings to maximize the applicant’s incarceration or that he faces a piecemeal prosecution.
81It is speculation to argue that the authorities delayed the extradition for an improper reason. Mere conjecture or speculation of an improper purpose does not meet the air of reality test: see Liang, at para. 22; Meng, at para. 52.
82The Court will not permit irresponsible allegations made solely for the purpose of initiating a fishing expedition in the hope that something of value will accrue to the defence: see Larosa, at para. 79.
83The applicant cites several examples of Canadian courts ordering disclosure. These cases are distinguishable from the case before the Court, principally because the courts in those cases had a more sufficient basis upon which to infer the possibility of abuse of process. The conduct of state officials was egregious in those cases, and there was a basis upon which the courts could infer possible collusion or coordination between state officials, which the courts found could amount to an abuse of process. Emails, communications, warrants, statements, and other material were used by the courts to draw inferences that actions taken by state officials may have had ulterior motives. The applicant cites six cases which I shall deal with in turn.
84In Meng, the extradition judge ordered disclosure, including correspondence between American and Canadian authorities relating to the applicant’s arrest. The Court found that there was an air of reality to the applicant’s claim that, during her arrest at the Vancouver International Airport, she was unlawfully detained, searched, and interrogated as part of a plan between Canadian and American authorities to have Canada Border Services Agency (“CBSA”) officers misuse their customs and immigration powers to covertly collect evidence for the FBI. The allegations in Meng involved more egregious state action and cooperation between the Canadian and American authorities, than in the case before the Court.
85The second case cited by the applicant is United States v. Rogan, 2014 BCSC 1016. In this case, the applicant alleged that the extradition proceedings were abusive because his earlier deportation was a disguised extradition. The Court considered the available evidence in the record on the disclosure application, and found it raised questions that were neither frivolous nor speculative about the motivation of Canadian authorities seeking the applicant’s removal from Canada.
86In Rogan, there were several entries made by CBSA officials reflecting their concerns that the applicant would not return to the U.S. for prosecution purposes if Canadian immigration authorities continued to allow him to remain in Canada. Canadian and U.S. authorities coordinated the seizure of the applicant’s passport which rendered him more likely to be removed to the U.S. The Court found that the applicant demonstrated a realistic possibility that the disguised extradition claim could be substantiated. There was an air of reality based on the evidence in the record, which could support the finding of further possible evidence of collusion between the authorities in the disclosure sought. In the case before this Court, the applicant’s submissions are based on speculation only.
87In United States v. Wilson, 2013 ONSC 7799, the applicant sought disclosure which would form the basis of an application under the Charter, as he believed he was subject to an extradition disguised as deportation. The FBI swore a criminal complaint against the applicant for wire fraud, and an immigration warrant was issued for his arrest in Canada the next day. The applicant had been in Canada for three days when the immigration warrant was issued, and he was arrested the next day. Two days later, formal deportation proceedings were commenced. Given the timing of the events leading up to this arrest on the immigration warrant, the Court found that the only possible inference was that there had been coordination between officials of the two countries. The Court ordered disclosure of communications between Canadian and American officials regarding the applicant’s return to the U.S. from Canada to face the outstanding charges. In contrast to the Wilson case, there is no similar evidence as to timing of the conduct of officials to support the inferences that the applicant asks to be drawn in the case at bar.
88In Attorney General (Canada) v. Bartoszewicz, 2012 ONSC 250, the applicant alleged that he was subject to a disguised extradition in the form of a deportation proceeding. The applicant based his disclosure request on a redacted note in the applicant’s file with Citizenship and Immigration Canada, which was obtained through a Freedom of Information request. The note indicated that the lack of extradition treaty between Canada and Poland prevented the Minister of Justice from acting on Poland’s request for extradition. The note discusses whether other actions could be taken to “expedite removal” of the applicant. Upon this basis, the Court found an air of reality to the allegation of abuse of process and ordered further disclosure. Upon disclosure, further emails were found that supported the inference that Canada only sought deportation proceedings at the insistence of Polish officials. The Court found that the only purpose of the deportation proceedings was to assist Poland in obtaining the return of the applicant. The exchange of emails and the conduct of the officials allowed the Court to draw these inferences. In contrast, in the case at bar, the applicant is unable to point to any evidence to support the air of reality to the allegation of abuse of process.
89In Tollman, the applicant sought a stay of proceedings on several grounds, including the allegation that the U.S. issued an arrest warrant for the applicant but did not disclose it to him, did not proceed on the warrant while the applicant was in his home jurisdiction in the U.S., and waited until he was in Canada to take steps to have him returned to the U.S. The applicant was detained in Toronto by CBSA officials, at the request of U.S. authorities. The Court found that the extradition proceedings were only commenced when the attempt to achieve a quick deportation failed and Mr. Tollman was ordered released from this detention. Mr. Tollman was held in custody at a full-scale criminal prison, which is an unusual placement for an immigration detention with no security risks. The Court found that there was a reasonable basis to infer that the officials made a concerted effort to keep the applicant in custody until he could be extradited.
90The Tollman Court found that the allegation, that the authorities made a deliberate attempt to thwart the Canadian extradition process and deny him the protections afforded under Canadian legislation, was one plausible explanation for these events. It was not the only possible plausible explanation, but neither was it so far-fetched that it did not deserve to be fully examined. The strength of Mr. Tollman's case in respect of the "disguised extradition" allegation easily met the threshold of demonstrating a reasonable possibility that his allegations can be substantiated. In the case before this Court, the applicant has not pointed to similar conduct or presented possible explanations to support his allegations.
91The final case cited by the applicant is United States of America v. Licht, 2002 BCSC 299. Licht sought disclosure of information from the RCMP related to its involvement in an investigation against him by the U.S. Drug Enforcement Administration (“DEA”), on Canadian soil. The Court held that foreign agents acting on Canadian soil with the assistance of the RCMP could be characterized as illegal police conduct without more evidence. The Court held that there was an air of reality to a suggestion of impropriety. The DEA agent could be considered as an agent of the Canadian authorities in the circumstances, or the agent could be acting in Canada without any cloak of Canadian authority. This case is entirely distinguishable because it involved U.S. officials on Canadian soil, the possibility of the RCMP officials assisting the U.S. officials on Canadian soil, and the potential abuse of process arising from such conduct. This is not applicable in the matter before me.
92In the case before the Court, the applicant is not able to point any conduct, only the delay in bringing the extradition request, that may raise the possibility of coordination. The applicant has not established an air of reality to the allegations.
iii. It is Not Likely that the Documents Sought Would be Relevant to the Allegations
93The applicant must establish that there is a realistic possibility that the applicant’s abuse of process allegations could be substantiated by the disclosure sought, and that the documents would be relevant to the allegations.
94The applicant seeks an order compelling the respondent, the Attorney General of Canada, to disclose two categories of records, which I shall address in turn:
A. a mirror copy of the applicant’s hard drive that was seized and searched by NRPS pursuant to a search warrant:
95Although the hard drive was sent to the FBI in 2017, the applicant believes that the NRPS still have a mirror copy of the drive that they analyzed and categorized during the Canadian investigation. The applicant submits that a mirror copy of the hard drive is relevant to both prongs of the abuse of process allegations, as it will corroborate that the Canadian authorities had everything they needed to prosecute the applicant domestically, and instead left it to American authorities to prosecute the applicant on a piecemeal basis.
96It is not contested that images and videos in relation to multiple victims, including J, were contained on the hard drive. It is not clear why the applicant needs to view the entire hard drive to further his abuse of process claims.
97Even if the production of the mirror copy of the hard drive established that Canadian authorities had what they needed in August 2015 to prosecute the applicant in Canada in relation to J or other victims, there is no air of reality to both categories of abuse claims, for the reasons noted above. The hard drive would not assist when the application has no merit. There is no realistic possibility that the applicant’s abuse of process allegations could be substantiated by the disclosure of the hard drive.
B. all communications (in the possession of Canadian authorities) between Canadian and American authorities regarding the investigations into the applicant’s online activities, including but not limited to communications to and from the International Assistance Group, and between NRPS Constable Pataran and FBI agents Reid, Romash and Crouse:
98The ROC suggest that Constable Pataran communicated with the FBI. The RCMP also communicated with American authorities including the Department of Homeland Security. The International Assistance Group signed the Authority to Proceed on behalf of the Minister and may have correspondence with American authorities. The applicant states that these communications are relevant to the abuse of process allegation regarding intentional delay.
99As noted above, there is no air of reality to the abuse claim regarding delay because it is based entirely on speculation that there was misconduct by the authorities. The Attorney General of Canada has acknowledged that treaty partners usually wait until a custodial sentence has been served before making a request for extradition, as a matter of respect for our judicial system and because incarceration can be a practical barrier to extradition. I fail to see how the requested disclosure will add anything to the delay argument.
100Regarding the perpetual piecemeal prosecution issue, I have already determined that this concern is premature. The requested disclosure will not remedy that flaw in the applicant’s submissions.
101I find that the applicant has not shown how the requested disclosure is relevant to the allegations.
IV. Conclusion
102For all of these reasons, the application for disclosure is dismissed.
Braid, J.
Released: January 4, 2022