COURT FILE NO.: CR-21-900000-82-00MO DATE: 20220331 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ANTON VIKHAREV Applicant

Christopher Bundy and Heather Graham, for the Respondent Boris Bytensky, for the Applicant

HEARD: March 18, 24, and 29, 2022

RULING ON AN APPLICATION FOR DISCLOSURE ON AN EXTRADITION PROCEEDING

B.P. O’Marra J.

Overview

[1] On June 4, 2021, the Applicant and his wife arrived at Toronto Pearson International Airport expecting to depart on their scheduled flight to Russia (via Frankfurt, Germany). In 2019, they had commenced refugee protection proceedings in Canada and lived and worked in Canada openly and lawfully thereafter. However, the ongoing Covid-19 pandemic resulted in multiple adjournments of their refugee hearing. Family members contracted the virus in Russia and died. They decided to withdraw their refugee claims and return home. They had been in regular contact with officials from Canada Border Services Agency (CBSA) regarding their departure from Canada, whom they kept abreast of their travel arrangements.

[2] Although the Applicant’s wife was permitted to board the flight, the Applicant was not. Instead, he was arrested by Canadian authorities on the strength of a provisional arrest warrant issued pursuant to section 13 of the Extradition Act, S.C. 1999, c. 18, which in turn was issued as a result of an urgent application made earlier that same day by the Respondent. That application was made in connection with an extradition request made by the United States of America to prosecute the Applicant for his alleged role in a fraud and money laundering scheme investigated since 2015, and in respect of which an arrest warrant had been issued by the United States District Court on February 23, 2021.

[3] Since his arrest, the Applicant has remained in custody. The extradition hearing is scheduled to proceed on May 12, 2022.

[4] The Applicant will allege that, in pursuing this ex parte arrest warrant, the Respondent knowingly, recklessly or at the very least, negligently, mis-stated information about the Applicant. This enabled the Respondent to obtain the arrest warrant on the basis of urgency and the “need to prevent escape”, when the Respondent knew or, at the very least, ought to have known that the Applicant’s planned departure from Canada could not reasonably be characterized as an attempt to escape or evade prosecution. The Applicant will allege that the Respondent’s materials leading to the exercise of these extraordinary arrest powers (and the subsequent lengthy denial of the Applicant’s liberty) were significantly misleading and fell far short of the obligation to be “full, frank and fair”; to the extent that the mis-use of these extraordinary arrest powers in this manner harms the integrity and repute of the judicial process, violates the community’s sense of fair play and decency and constitutes an abuse of process, requiring a stay of proceedings.

[5] In advance of this abuse of process application, the Applicant seeks disclosure of materials that are either in the possession of the Respondent, said to have been reviewed and relied upon by the affiant in the materials filed in support of the provisional arrest warrant, or otherwise subject to the power of this Court to control its own process. The Applicant submits that all of these materials are clearly relevant to the abuse of process allegations and will ultimately assist the court in determining the abuse of process application.

[6] The Applicant submits that: (1) the court “might” find that an abuse of process has occurred; (2) that there is at least an air of reality to the allegation that the Respondent intentionally, recklessly or negligently misled the issuing justice to suggest that the Applicant was seeking to escape or evade justice when the Respondent knew or, at least, ought to have known, that this was not so; and (3) the disclosure sought is likely relevant to an assessment of the allegations. As such, all three parts of the test for disclosure in the extradition context are met.

[7] The Respondent submits that the Applicant’s disclosure application should be dismissed as it fails to meet the Larosa test for exceptional disclosure. The application also fails to raise issues that pertain to the circumscribed issues relevant at the judicial stage of the extradition process, which is limited to determining whether there is a prima facie case sufficient to warrant committal. Moreover, the Applicant has failed to demonstrate a nexus between the alleged misconduct and the extradition hearing. With no nexus to the extradition hearing the Applicant’s complaints are incapable of leading to a stay of the extradition proceedings.

The Extradition Request

[8] The Applicant is alleged to have been involved with others in a fraudulent tax refund scheme in the United States between 2011-2016. The actual loss suffered was slightly over $2,000,000. A warrant for his arrest was issued in the United States February 23, 2021. There is no evidence that the Applicant had knowledge of that warrant or that he had been contacted by any American or other official in regard to the investigation.

[9] The Applicant accepts that the offences for which extradition is sought are sufficiently serious to engage the application of the Extradition Act. For the purpose of this disclosure application the Applicant accepts that, subject to an abuse of process application, there is otherwise a sufficient basis to order a committal for extradition.

[10] The detention of the Applicant after his arrest on the provisional warrant was confirmed and continued by Roberts J. on August 12, 2021. In the course of her reasons for detention she indicated that “the Crown is clear that he is not alleging that Mr. Vikharev was attempting to flee”, however he had failed to meet his onus on the primary ground.

The Smith Affidavit

[11] This document that supported the application for a provisional arrest warrant referred to urgency based on the following:

• “In order to prevent him from continuing to evade justice.”
• “Urgency and prevention of escape.”
• “He may continue to evade prosecution in the U.S for these serious offences.”

[12] The Applicant alleges that the presentation of this affidavit left the issuing justice with the false impression that the Applicant had essentially gone underground in Canada and that he had no contact with Canadian government officials after his arrival and until his removal interview.

[13] Section 13 of the Extradition Act provides as follows:

Provisional Arrest Warrant 13(1) A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person, if satisfied that there are reasonable grounds to believe that a) It is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence; b) The person is ordinarily resident in Canada, is in Canada or is on the way to Canada; and c) A warrant for the person’s arrest or an order of a similar nature has been issued or the person has been convicted.

[14] While the term “urgency” does not appear in this section, courts have found that “urgency” is a precondition to proceeding on an ex parte basis for this exceptional relief. “Urgency” was specifically referred to in the Smith affidavit.

[15] An ex parte application must present full, frank and fair disclosure of all material facts: R. v. Araujo, 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.).

[16] In R. v. Larosa, 2002 ONCA 45027 at para. 76 the court addressed the criteria for ordering production of documents in extradition proceedings as follows:

• The allegations must be capable of supporting the remedy sought;
• There must be an air of reality to the allegations; and
• It must be likely that the documents sought would be relevant to the allegations:

[17] Extradition hearings are not trials and the applicable disclosure is fundamentally different from domestic criminal proceedings. The latter relate to the right of an accused to make full answer and defence in a trial where guilt or innocence are at stake: USA v. Dynar, 1997 SCC 359, 2 S.C.R. 462 at paras. 130-132; USA v. Kwok, 2001 SCC 18, 1 S.C.R. 532 at paras. 99-101.

[18] The person sought for extradition is ordinarily “not entitled to disclosure from the Requesting State beyond the production of the evidence that it relies on to establish its prima facie case”: Dynar at paras. 134, 144; Kwok at paras. 99, 101.

[19] An extradition judge has Charter jurisdiction but only in respect of issues related to whether there is a prima facie case against the person sought. Canadian courts have the inherent and residual common law discretion to control their own process and prevent an abuse of that process. The presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process: USA v. Cobb, 2001 SCC 19.

[20] In USA v. Lane, 2014 ONCA 506 at para. 45 the court addressed the extradition judge’s jurisdiction to consider Charter issues. The Extradition Act s. 25 gives the judge jurisdiction to consider such that “pertain directly to the circumscribed issues relevant to the committal stage of the extradition process”: Kwok at para. 57. If 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”: USA v. Khadr, 2011 ONCA 358 at para. 45, leave to appeal refused, {2011} SCCA 316. 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: USA v. Tollman, 2006 ONSC 31732, 212 CCC (3d) 511 (Ont. S.C.).

[21] In USA v. Shulman, 2001 SCC 21, the party sought was committed for surrender related to charges of fraud. He appealed against committal and sought to tender fresh evidence of threatening statements made by the American judge and prosecuting attorney who had carriage of the matter in the United States. The judge had commented that those fugitives who did not cooperate would get “the absolute maximum sentence”. The prosecuting attorney had hinted during a television interview that the uncooperative fugitives would be subject to sexual assault in prison. The Court of Appeal dismissed both the motion to adduce fresh evidence and the appeal against committal. On further appeal, the Supreme Court ruled that the Court of Appeal erred in not receiving the fresh evidence. The televised comments of the prosecuting attorney were a shocking use of threats by an American official attempting to induce a Canadian citizen to renounce the exercise of his lawful access to courts in Canada to resist an extradition request. Those statements were properly attributed to the Requesting State. Standing alone, the statements of the prosecutor constituted a sufficient basis upon which to stay the proceedings.

[22] The extradition judge has jurisdiction to order disclosure relevant to issues properly raised at the committal stage of the process where there is at least an air of reality to the Charter claims: Kwok, at para. 100; Dynar at paras. 118, 141.

Abuse of Process and General Principles

[23] Courts will intervene to prevent abuse of process based on both the common law and the Charter of Rights and Freedoms: R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411 at para. 71.

[24] The remedy of a stay should only be used in the clearest of cases: O’Connor at para. 59. The onus would be on the Applicant.

[25] An extradition judge has the power to stay proceedings for abuse of process both at common law and under the Charter: Cobb at paras. 39, 49; Dynar at para. 124.

Analysis

[26] The issue at this stage is not whether the provisional warrant was issued based on false or misleading information. It is unclear whether that allegation has been made out, and if so whether it was so egregious as to amount to an abuse of process. I am satisfied that based on the Larosa criteria there should be an order for further disclosure related to this issue.

Result

[27] The application is granted and there will be an order for disclosure of the following with a qualification and exception for potential redactions:

a) All materials referred to by D.C. Smith at paragraph 1 of her affidavit filed in support of the provisional arrest warrant, whether obtained, learned or made before or after June 4, 2021, specifically including: i. All materials received from “other law enforcements officers”; ii. All materials received from CBSA; iii. All materials received from the Department of Justice; iv. All materials gathered by Smith “from [her] own investigation”, specifically including her memo-book notes or other similar writings; v. If information was learned that has not been reduced to writing, a “will say” or affidavit setting out any such additional information relied on for the purpose of the affidavit; b) All other notes, memoranda, correspondence (in all formats) or other documentation related to any discussions between Canadian and American officials with respect to the Applicant prior to June 4, 2021 or reporting on the said arrest, specially including any such documentation relating to the request to obtain a provisional arrest warrant; c) If any Toronto Police Service officers were involved in this matter with Smith, their notes or other writings related to their involvement; d) Those portions of the CBSA file relayed to the application for a provisional warrant; and e) Those portions of the Department of Justice file related to the application for a provisional warrant.

[28] The qualifications and exception that I referred to relate to any portion of these records that are subject to a recognized assertion of privilege or another basis for redaction. If there is a dispute as to the assertion of any such issue, this matter can be brought back before me on short notice for clarification and direction.

O’Marra J.

B.P. O’MARRA J. Released: March 31, 2022