COURT FILE NO.: CR-21-90000049-00MO

DATE: 20220120

SUPERIOR COURT OF JUSTICE

(TORONTO REGION)

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE EXTRADITION ACT FOR AN ORDER COMMITTING BAKSHINDER PALSINGH MANN FOR EXTRADITION TO THE UNITED STATES OF AMERICA

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

Applicant

• and -

BAKSHINDER PALSINGH MANN

Respondent

Heather Graham for the Applicant

Dana Achtemichuk for the Respondent

HEARD: January 14, 2022

REASONS FOR ORDER ON COMMITTAL

SPIES J. (orally)

Overview

1The Attorney General of Canada (“Attorney General”) on behalf of the United States of America (“USA”), as authorized by the Minister of Justice (“Minister”), seeks an order for the committal of Mr. Mann who is sought for prosecution by the USA pursuant to an Authorization to Proceed (“ATP”) dated June 10, 2021.

2The ATP lists the Canadian offences, which correspond to the alleged conduct as follows:

a) Sexual assault, contrary to s. 271 of the Criminal Code; and

b) Accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code.

3The USA provided a Revised Record of the Case (“ROC”) dated June 9, 2021, certified by a Deputy District Attorney pursuant to s. 33 of the Extradition Act, S.C., 1999, c.18 (“Act”). Pursuant to s. 32(1)(a) of the Act, the ROC was admitted as evidence.

The Issue

4Section 29(1)(a) of the Act provides that I shall order the committal of Mr. Mann into custody to await surrender if, “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 in the Authority to Proceed and the judge is satisfied [on a balance of probabilities] that the person [before the Court] is the person sought by the extradition partner.”

5The Attorney General’s position is that the test for committal is satisfied for both offences set out in the ATP.

6Ms. Achtemichuk, counsel for Mr. Mann, conceded the second prong of the test, namely that Bakshinder Palsingh Mann before this Court is the person sought by the USA. Furthermore, Mr. Mann does not contest the accuracy or reliability of the evidence in the ROC, at least for the purpose of extradition.

7On the sexual assault allegation, Mr. Mann does not dispute that the evidence in the ROC establishes a prima facie case for committal for the offence of sexual assault. While not conceding committal, Mr. Mann accepts that based on the ROC this Court will almost certainly commit him for extradition for the offence of sexual assault.

8However, it is Mr. Mann’s position that the Attorney General has failed to establish a prima facie case that the offence of accessing child pornography has been committed. It is submitted that the conduct alleged does not establish the offence of accessing child pornography under Canadian law by virtue of the “private use exception” and as such Mr. Mann should not be committed for extradition for this offence.

9It is the position of Ms. Graham for the Attorney General that the private use exception is a defence that this Court cannot consider in its role as the extradition judge. In any event it is her submission that if this Court considers the submissions of Ms. Achtemichuk, based on competing inferences Mr. Mann should be extradited on this offence in any event.

The Evidence

10The evidence provided by the USA in support of its request for extradition of Mr. Mann is as follows.

11A.K. (“A.”), Mr. Mann’s cousin, will testify that in January 2017, when she believes she was 15 years old, she and Mr. Mann began engaging in sexual activity. In fact, the ROC lists A.’s date of birth as XXXX, 2002, which means she was barely 14 years old in January 2017. Mr. Mann’s date of birth is March 18, 1995, so in January 2017, he was 21 years old, seven years older than A.

12Mr. Mann had sex with A. at least 10 times in the two-year period between January 2017 and January 2019. Mr. Mann was aware of A.’s age, and they had discussed the fact that she was a minor. They kept their sexual relationship secret. Over this period, Mr. Mann impregnated A. twice. The first time was when she was 15 years old. A. gave birth in the bathroom at home and her mother took the baby from her. He was later found buried in the backyard. The second pregnancy resulted in a miscarriage in March 2019.

13While conducting the investigation surrounding the baby found buried in the backyard, police discovered a cell phone in the garage of the home. A search of the phone revealed that it was A.’s phone. It contained several photos of A. with her breasts exposed, and two videos in which her vagina was exposed. The contents of the phone revealed that A. sent these photos and videos (collectively the “Images”) to Mr. Mann via WhatsApp on December 15, 2018, just 10 days after she turned 16. When asked about these Images, A. told police that Mr. Mann had asked her to send sexually explicit images of herself to him. There is no evidence in the ROC about when Mr. Mann asked A. to do this or when she made the Images.

The Test for Committal

14In deciding whether to order the committal of Mr. Mann I am guided by the decision of the Supreme Court of Canada in M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973 at para. 38. With respect to the specific issue before me, my role as the extradition judge is to determine whether there is a prima facie case of a Canadian crime. I am not to become embroiled in questions about possible defences or the likelihood of conviction. Extradition hearings are not trials; they are intended to be expeditious procedures to determine whether a trial should be held. Section 29(1)(a) of the Act incorporates the test that a justice conducting a preliminary inquiry must apply when deciding whether to commit a defendant for trial in Canada, which is also the test that applies to whether a trial judge should order a directed verdict of acquittal at the end of the Crown's case: see M.M. at para.37.

15As stated in M.M. at paras. 39 and 40, the role of the extradition judge at the committal phase has evolved and the test for committal now differs in two respects from the preliminary inquiry context. First, unlike the preliminary inquiry justice, this Court may grant Charter remedies that pertain directly to the circumscribed issues relevant to committal. Second, unlike the preliminary inquiry justice, I must engage in a limited weighing of the evidence to determine whether there is a plausible case.

16Relevant to the issues before me, at para. 71 M.M. also confirmed that the role of the extradition judge does not envision weighing competing inferences that may arise from the evidence, other than in the limited sense of considering that the inferences sought to be drawn from circumstantial evidence are reasonable. Provided the inferences that favour the Crown are reasonably supported by the circumstantial evidence, it is not for the extradition judge to evaluate the comparative strength of the competing factual inferences: see R. v. Sazant 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 18.

Analysis

Sexual assault, contrary to s. 271 of the Criminal Code

17Given the concession by Mr. Mann that he is the person sought by the USA, I have no difficulty in finding that Mr. Mann should be committed for extradition for the offence of sexual assault, contrary to s. 271 of the Criminal Code. There is available evidence on each of the elements of the offence.

Accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code

18Turning to the accessing child pornography offence, the definition of “child pornography” for the purpose of this application includes a photo or video, the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ of a person under the age of 18 years: s. 163.1(1)(a)(ii) of the Criminal Code. The offence of accessing child pornography is to knowingly cause child pornography to be viewed by – or transmitted to – oneself: s. 163.1(4.2). The offence is made out where a person under 18 years of age sends sexually explicit images of herself to the defendant via text message at his request. The inference that a person has viewed child pornography or has caused it to be transmitted to himself can be drawn from circumstantial evidence.

19It is a fundamental principle of extradition law that no person can be extradited where the conduct relied on by the Requesting State is not criminal in Canada. This principle of double criminality requires that the Minister establish the elements of a Canadian offence and any other conditions on which the prosecution bears the evidential burden of proof, based on the admissible facts set out in the ROC. Mr. Mann submits that his conduct is not criminal in Canada and that as a result, he should not face punishment in the USA for this conduct.

20In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, McLachlin C.J.C. speaking for the majority found at para. 110, that although the legislation affords children protection from exploitation and abuse, the definition of child pornography is over broad and infringes on free expression and s. 7 of the Charter in certain circumstances. Where the image or video is for private use, the Criminal Code prohibition does not strike the proper balance between preventing harm to children and protecting freedom of expression: see paras. 109 and 116.

21As a remedy, rather than strike down the law (at para. 111) or uphold it and stipulate that the defendant could seek a constitutional exemption (at para. 113) McLachlin C.J.C. concluded at para. 114 that the appropriate remedy was to “read into the law an exclusion of the problematic applications of s. 163.1”. She went on to establish two constitutional exceptions to child pornography offences at para. 115:

To assess the appropriateness of reading in as a remedy, we must identify a distinct provision that can be read into the existing legislation to preserve its constitutional balance. In this case, s. 163.1 might be read as incorporating an exception for the possession of:

1.Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and

2.Private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.

22Mr. Mann submits that his alleged conduct satisfies one of these constitutional exceptions: the “private use exception,” which is described by McLachlin C.J.C. at para. 116 as follows:

The second category would protect auto-depictions, such as photographs taken by a child or adolescent of him- or herself alone, kept in strict privacy and intended for personal use only. It would also extend to protect the recording of lawful sexual activity, provided certain conditions were met. The person possessing the recording must have personally recorded or participated in the sexual activity in question. That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children. All parties must also have consented to the creation of the record. The recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein. Thus, for example, a teenage couple would not fall within the law's purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another. The burden of proof in relation to these excepted categories would function in the same manner as that of the defences of "artistic merit", "educational, scientific or medical purpose", and "public good". The accused would raise the exception by pointing to facts capable of bringing him or her within its protection, at which point the Crown would bear the burden of disproving its applicability beyond a reasonable doubt. [Emphasis added]

23McLachlin C.J.C. concluded at para. 128:

I would uphold s. 163.1(4) on the basis that the definition of "child pornography" in s. 163.1 should be read as though it contained an exception for: … (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use. The constitutional questions should be answered accordingly.

24In R. v. Barabash, 2015 SCC 29, [2015] 2 SCR 522, the Supreme Court considered the private use exception established in Sharpe. There the Court stated at para. 1 that the private use exception acts as a defence to the offences of making and possessing child pornography contrary to s. 163.1 of the Criminal Code. That this exception is a defence was reiterated by the Court at paras. 15 and 19, and at para. 19 the Court stated:

In order for this defence to go to a jury, the accused must raise an air of reality with respect to all three elements of the defence (Sharpe, at para. 116). Once this evidential burden is met, the Crown then bears the persuasive burden to disprove the defence beyond a reasonable doubt. Since all three elements are necessary for the defence to succeed, the Crown need only disprove one element beyond a reasonable doubt. [Emphasis added]

25Ms. Achtemichuk provided both written and oral submissions as to how Mr. Mann has established an air of reality to this constitutional exception and she argued that it now falls to the Attorney General to disprove its applicability beyond a reasonable doubt. It is her position that the Attorney General cannot establish a prima facie case that the sexually explicit Images in question are in fact child pornography given the constitutional exception read into that definition by the Supreme Court.

26Before considering those submissions, I must first determine whether the private use exception is a defence, as the law is clear that this Court has no jurisdiction on this application to consider any defences.

27Ms. Achtemichuk submits that notwithstanding the express and clear language in both Sharpe and Barabash to the contrary, the private use exception does not raise a procedural defence to what would otherwise be criminal conduct. Rather it prescribes the constitutional limit on the criminalization of the possession and access of child pornography; literally it deems certain conduct as non-criminal. She argued that the bar to considering defences at a committal hearing does not relieve the Minister from having to establish the elements of the offence and any other conditions on which the prosecution bears the evidential burden of proof. This includes establishing that the private use exception does not apply. She submits that this is not about determining the guilt or innocence of Mr. Mann for a crime, but rather assessing whether there is evidence that a crime even occurred.

28Having regard to the language of para. 115, set out above, it seems clear that McLachlin C.J.C. intended that this exception be considered as a defence for the defendant to raise at trial. Once a defendant pointed to facts “capable of bringing him … within its protection” the Crown would bear the burden of disproving its applicability. She likened this private use exception to other defences. Ms. Achtemichuk however relies on the language in Sharpe which is also clear that the private use exception must be “read in” to the definition of child pornography itself in s. 163.1 of the Criminal Code.

29The Supreme Court did not set out exactly how it would word s. 163.1 to make it Charter compliant. McLachlin C.J.C. did, however, state in para. 116, as already set out, that the burden of proof in these excepted categories would “operate in the same manner as that of the defences of ‘artistic merit’, ‘educational, scientific or medical purpose’, and ‘public good’” (the “three defences”) [emphasis added]. Those three defences are clearly set out as defences in ss. 163.1(6) and 163(3) of the Criminal Code, respectively.

30Ms. Achtemichuk argued that these three defences are different in that in those cases the content of the images is still child pornography and the defence is based on the purpose of the images which is determined not to be criminal, whereas application of the public use exception results in the images not meeting the definition of child pornography in the first place. It is on this basis that she submits that it would be for the Crown to prove that the exception does not apply.

31In my view, however, the language in Sharpe makes it clear that the Court was considering the purpose of the images in determining that the definition of child pornography was overbroad and that an exception for private use should be made. Furthermore, as Ms. Graham submits and as Ms. Achtemichuk conceded, the private use exception considers the conduct of the defendant, not the content of the images and in that sense, it is also akin to these other three defences.

32Although Sharpe does state that the definition of child pornography would change, by “reading in” the private use exception, as Ms. Graham submits it could not have been the intention of McLachlin C.J.C to change the definition of child pornography for all offences. For example, it would not make sense that the revised definition would apply to the offence of distribution of child pornography although in that case the element of keeping the images private would obviously not be met.

33Counsel were not able to find any cases where this issue was considered, and Ms. Graham advised that she was not able to find any case where the private use exception was applied.

34Given the clear and repeated language in Sharpe and confirmed in Barabash that the public use exception is a defence and given the reference by analogy to the three defences set out in the Criminal Code, in my view, the words of McLachlin C.J.C. that the private use exception should be “read in” to the definition of child pornography should not be taken literally. It must be the case that it was intended that a specific defence for the private use exception would be carved out of the definition of child pornography in a manner similar to the other three defences.

35For these reasons I find that the private use exception is in fact a defence and accordingly, it is not for this Court to consider whether Mr. Mann has raised an air of reality to this defence.

36Even if this conclusion is incorrect, I would still order Mr. Mann’s committal for extradition on the offence of accessing child pornography based on the evidence in the ROC. Without ruling on the issue, Mr. Mann might be able to point to facts in the ROC capable of bringing him within the protection of the private use exception as set out in Sharpe at para. 116. The Images were sent to Mr. Mann very shortly after A. turned 16 years old and so she was legally able to consent to the sexual activity at the time she sent these Images to him. We do not know if he pressured her to send these Images, However, there is no evidence that Mr. Mann shared the Images with anyone, but neither is there evidence that he kept the Images private. Mr. Mann has a legal hurdle on the issue of whether he “participated in the sexual activity” in question but as Ms. Achtemichuk argued, the Supreme Court decided Sharpe in 2001, well before the proliferation of smart phones and the ability to share images with others who were not physically present when the image or video was created. Ms. Achtemichuk relied on R. v. Keough, 2011 ABQB 48 at paras. 276-277 where Manderscheid J. held that the private use exception applies where “A records A for B”, which she argued is precisely the situation in this case. There are cases that hold to the contrary and the case law is unsettled on whether on the facts of this case, Mr. Mann “participated” in the sexual activity.

37In my opinion, even if Mr. Mann could bring himself within the private use exception and shift the burden to the Crown, as Ms. Graham submits, this is far from the type of case McLachlin C.J.C. had in mind when she reasoned that the private use exception could reinforce “healthy sexual relationships” and that "two adolescents might arguably deepen a loving and respectful relationship through erotic pictures of themselves engaged in sexual activity" that “poses little or no risk to children”: Sharpe at paras. 105 and 109.

38In this case the allegations if proven, establish that Mr. Mann repeatedly sexually assaulted his cousin who was seven years younger than he was and was not legally capable of consenting to that sexual activity. She gave birth to a baby that was taken from her and buried in her backyard and then suffered a miscarriage. It is hard to imagine a more egregious case of child sexual abuse if the facts are proven – it is certainly at the serious end of the spectrum. To suggest that this prior unlawful activity does not taint the consent that A. gave when she sent the Images to Mr. Mann would seem quite frankly, to be an absurd proposition.

39This issue was addressed by the Supreme Court in Barabash. The Court found at para. 36 that:

Where an accused raises the private use exception and the Crown seeks to challenge the lawfulness of the sexual activity on the basis of exploitation, a trial judge must look beyond whether or not consent was given and holistically examine the nature and circumstances of the relationship between the young person and the accused. Section 153(1.2) provides a non-exhaustive list of indicia from which a trial judge may infer that the relationship between the accused and a young person is exploitative:

(a) the age of the young person;

(b) the age difference between the person and the young person;

(c) the evolution of the relationship; and

(d) the degree of control or influence by the person over the young person.

It is not necessary that the person accused of making or possessing child pornography be charged separately under s. 153(1) in order for a judge to undertake this inquiry. The lawfulness of the sexual activity is independently assessed as part of the defence. [Emphasis added]

40Ms. Achtemichuk submits that this was a “romantic relationship” and that A. had saved Mr. Mann’s phone number as “Husband Ji” and that there were messages from her to Mr. Mann that she loved him. She argued that A. could develop a healthy sexual relationship with Mr. Mann notwithstanding that she was only 14 years old when that sexual relationship began. In my view this position fundamentally misconstrues the need for lawful consent in these circumstances. There could be no doubt that in these circumstances a compelling inference that favours the Crown and is reasonably supported by the circumstantial evidence, is that A.’s consent was tainted by exploitation – this was a far cry from a healthy sexual relationship.

41A. is seven years younger than Mr. Mann and even if she believed that she loved him and she believed that he loved her, the evolution of their relationship began when she was only 14 years old. It included two pregnancies and involved serious sexual assaults on at least 10 occasions during a two-year relationship that was to be kept secret from her family. It was in this context, even though she had just become legally capable of consenting to sending Mr. Mann sexually explicit Images of herself that she did so. I note by then, because of the repeated sexual assaults and A.’s misguided belief that she loved Mr. Mann, that she was accustomed to him seeing her naked and performing sexual acts. In that context sending these Images would not be a big step. However, I find it impossible to believe that A.’s free will was not impacted or vitiated by the nature of this prior exploitive relationship. Even if Mr. Mann could raise a competing inference, it is not for this Court to evaluate the comparative strength of the competing factual inferences.

42For these reasons I find that Mr. Mann should also be committed for extradition of the offence of accessing child pornography contrary to s. 163.1(4.1) of the Criminal Code.

Disposition

43Accordingly, I order the committal of Mr. Mann into custody pursuant to s.29 of the Act to await surrender for the offences set out in the ATP.