ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
A. Rice, for the Respondent/Requesting State
Requesting State/
Respondent
- and -
SABRINA ELOFER
aka SABRINA SARA; MILA MORALES
L. Adler and K. Gray, for the Applicant/Person Sought for Extradition
Person Sought for Extradition/
Applicant
HEARD: March 15, 2023,
at Toronto, Ontario
Michael G. Quigley J.
Reasons For Decision
Overview
1The United States of America has asked Canada to extradite Sabrina Elofer (the “Applicant” or “Ms. Elofer”) to face charges arising from her alleged participation in a telemarketing fraud scheme that operated from Israel between 2014 and 2016. Ms. Elofer was allegedly involved for just over a year between October 2015 and November 2016, while she was resident in Israel. The fraudulent scheme was based on options and “virtual” money-market type instruments. It targeted investors throughout the world who are claimed to have sustained multiple millions of dollars in losses.
2Upon receiving the extradition request from the U.S., the Attorney General of Canada commenced the process of bringing an application for Ms. Elofer’s committal under ss. 29(1) (a) of the Extradition Act, S.C. 1999, c. 18, (the “Act”).
3Pending a committal hearing, Ms. Elofer has brought this application in which she seeks wide-ranging relief, including extraordinary disclosure and the right to cross-examine all police officers involved to date in the extradition process. Ultimately, she asks for a stay of these proceedings based upon alleged abuses of process that she claims violated her rights under ss. 7 to 9 of the Canadian Charter of Rights and Freedoms1 (the “Charter”). She says (i) the application by police for an arrest warrant, on behalf of the Attorney General, and (ii) the manner in which the police executed their arrest warrant, so egregiously breached her Charter rights that these extradition proceedings must be stayed on the basis of abuse of process.
4More particularly, Ms. Elofer claims an abuse of process: (i) because of alleged dishonest and bad faith conduct on the part of the affiant, Acting Sergeant Stephanie Durkin, a member of the RCMP in B.C., in the course of asking the Supreme Court of British Columbia to issue a warrant under the Act, and (ii) because police officers allegedly arrested her illegally in the condominium building in Toronto where it was suspected Ms. Elofer might be staying with her father.
5The Applicant alleges that Sgt. Durkin “misstated key facts” regarding Ms. Elofer’s involvement, “indulged in speculation”, “omitted vital details”, and “massively overstated Ms. Elofer’s likely sentence.”
6She says that Sgt. Durkin’s “mis-statements”, together with her failure to request a Feeney warrant, and to advise the judge “of the intention to use a no-knock ruse”, was an “egregious violation” of her obligations as the affiant in support of the issuance in British Columbia in 2021 of the warrant for Ms. Elofer’s arrest. The Applicant contends that there is at least an air of reality to the allegation that Sgt. Durkin “intentionally, recklessly, or negligently, misled the issuing Justice”, to believe that Ms. Elofer needed to be arrested, rather than merely summoned to appear before the Court, when it is claimed there was no need for the more serious procedure.
7Ms. Elofer claims these alleged wrongs, taken together with an alleged improper arrest in Toronto on May 2, 2022, establishes the necessary air of reality to her allegations that the police violated her Charter rights. Finally, the Applicant contends that the disclosure sought on this application is relevant and necessary to an assessment of all these allegations.
8The ultimate remedy sought is a stay of these proceedings, based upon the alleged abuse of process by the Respondent’s state agents, but the immediate relief sought here has two distinct components. This first seeks an order under ss. 7 and 24(1) of the Charter, and s. 25 of the Act, directing the Attorney General, on behalf of the United States, to provide to the Applicant disclosure of all the materials described in the Applicant's Notice of Application dated February 15, 2023.
9The second presumes that the disclosure orders sought under this first part of the application will be granted. If so, it calls upon the Respondent to produce all the police officers who are named in the application and related documentation for the purpose of cross-examination in relation to claimed violations of the Charter and the Act.
10In the end, the Applicant claims that the arrest warrant was issued based upon duplicity and deception, and executed illegally in breach of her Charter rights, and that these alleged abuses of process call for the exceptional remedy of a stay of the extradition proceedings.
11The Attorney General resists the Applicant’s broad request for further disclosure on the basis that her claims of abusive state conduct have no air of reality. She opposes the court granting leave to cross-examine officers from police forces in B.C. and Toronto, because the issues on which that disclosure and cross-examination is sought have no bearing on the committal process.
12The Attorney General asks that Ms. Elofer’s applications be dismissed because she has failed to establish her entitlement to the exceptional disclosure she requests, failed to demonstrate that her rights were breached when she was arrested, and most importantly, has failed to demonstrate a nexus between the misconduct she alleges and the role that I am mandated to serve as an extradition judge.
13I find that both aspects of this application fail, and that it must be dismissed. I have found that there is no evidential foundation capable of that supporting the Applicant’s claim of Charter breaches that amount to an abuse of process that requires a stay of these extradition proceedings. I have also found that the Applicant has not discharged her burden to establish the nexus between the alleged Charter infringing conduct and the committal process as required by the Act. In the reasons that follow I explain why I reach these conclusions.
Factual and Procedural Background
14The factual background to this application is contained in the Record of the Case (“ROC”) certified August 27, 2020, by the Assistant Deputy Chief of the Fraud Section, Criminal Division in the U.S. Department of Justice (“DOJ”). The ROC sets out the evidence of the Applicant’s alleged criminal conduct, which the American authorities will advance at her trial.
15This proceeding commenced in Canada on June 18, 2021, when counsel for the Minister of Justice issued an authority to proceed (“ATP”) in response to the ROC. The corresponding Canadian offence to that identified in the ATP and alleged against Ms. Elofer is fraud as defined in s. 380 of the Code.
16American authorities allege that Ms. Elofer was a member of a conspiracy with others to deceptively market and sell binary options to investors. They say she was engaged in the fraud from the fall of 2015 until late 2016, as a so-called “retention agent.”
17The ROC describes a binary option as a type of option contract in which the payout typically depended on the rise and fall of the price of an underlying asset. The investors predicted, in essence, whether the asset’s price would be above or below a certain amount at a certain time of the day. They did not actually purchase or hold the underlying asset, but held an option related to that asset and would receive either a pre-determined amount of money or nothing when the option expired – all or nothing.
18The Applicant allegedly started to work as a “retention agent” at a branch of Yukom Communications in Israel in October 2015. She worked for Numaris Communications (“Numaris). Those two entities are referred to in the ROC as the “Binary Options Entities”. The ROC also states that the Binary Options Entities operated using two specific product brands: “BinaryBook” and “BigOption.”
19In her role, effectively as a salesperson of the binary options, the Applicant initiated and directly contacted investors in order to convince them to invest in binary options by depositing funds with the Binary Options Entities. In doing so, she is said to have made false and misleading statements about, among other things: (i) her qualifications, (ii) how the company made money, (iii) its success at achieving investment returns, and (iv), its trading success rates. The ROC also states that Ms. Elofer prevented investors from making withdrawals from their accounts or ending their investments in the binary options, by tying withdrawals to onerous trade requirements that the investors were unable to meet.
20Apart from the Applicant’s involvement, the scheme purportedly operated from 2014 to 2016, harming over 75,000 investors globally and resulting in losses of over $100 million. The ROC contains anticipated testimony from some of these victims describing how they were manipulated to invest by sales representations made by the retention agents about experienced, knowledgeable traders who had generated large returns, and would for them as well! The victims are also expected to describe the extensive resistance, the barricades that were erected, to prevent them from withdrawing their investment monies from the fraudulent scheme.
21A number of former employees of the Binary Options Entities have already pleaded guilty in the United States to charges of conspiracy to defraud investors within the context of this scheme. Those employees were witnesses at the trial of former Yukom CEO, Lee Elbaz. She was convicted in August 2019.
22The ROC sets out the testimony that the DOJ anticipates the prosecution will lead against Ms. Elofer. These employees will provide evidence of the general scheme and evidence specific to the Applicant’s participation in it. As part of their testimony, the employees are expected to review audio recordings, presently held by the FBI, and supposedly of the Applicant and clients. They will also explain how all of them were encouraged to adopt those same pressure sales techniques to improve their own performance as retention agents.
23One of these cooperating witnesses is Mr. Austin Smith. Evidently, he worked in the same office as the Applicant. He identifies Ms. Elofer in a photograph that is attached as an exhibit to the ROC.
24Finally, the ROC also contains the expected testimony from FBI Special Agent Gregory Fine about internal company records of the Binary Options Entities. Among the records are reports of the net deposits the Applicant allegedly received while working as a retention agent and emails she sent to co-workers and to an investor.
25As noted, the corresponding Canadian offence identified in the ATP is fraud. The elements of the offence are set out ss. 380(1) of the Code. It provides that every one is guilty of the indictable offence of fraud:
…who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service.
26In Canada, the maximum term of imprisonment is not to exceed fourteen years, where the value of the subject-matter of the offence exceeds five thousand dollars, or not exceeding two years where the value does not exceed five thousand dollars. Section 380 also imposes a mandatory sentence of two years, that is, a penitentiary sentence, if the total value of the subject-matter of the offences exceeds one million dollars.
27Once in possession of the ROC and the Minister’s ATP, counsel for the Attorney General applied on June 22, 2021, to the Supreme Court of B.C. for a warrant for the Applicant’s arrest under s. 16 of the Act. The application was supported by an affidavit, sworn on June 21, 2021, by Sgt. Durkin.
28Section 16 allows for the issuance of either a summons or an arrest warrant for the Person Sought. Subsection 16(1) permits the Attorney General, on behalf of the Minister, to apply ex parte to a judge in the province in which the Attorney General believes the person is located for the issuance of a summons to, or a warrant for the arrest of the person. Subsection 16(3) directs the judge to whom the application is made to either issue a summons to the person, or a warrant for the arrest of the person, in either case in accordance with subsection 507(4) of the Code, with any modifications that the circumstances require.
29Subsection 507(4) of the Code provides important direction on whether a summons or a warrant should be issued, and the different circumstances for each:
507(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused. [emphasis added]
30However, regardless of which form of process is used to compel the attendance of the Person Sought, in either case the warrant or summons issued under s. 16 may be executed or served anywhere in Canada without being further endorsed.
31In addition to the ATP and the ROC, Sgt. Durkin attached other supporting exhibits to her affidavit. These were included in this record. They include:
(i) a copy of a U.S. DOJ news release, dated December 19, 2019, that included information about CEO Lee Elbaz’s sentence and about the unsealing of a grand jury indictment against 15 co-conspirators in November, 2019;
(ii) a copy of an article from the online newspaper ‘The Times of Israel’, published on November 19, 2019. It referred to both the unsealing of the indictment and that it specifically also identified “Sabrina Elofer, 28” as a defendant; and
(iii) a photograph of Ms. Elofer, taken on May 19, 2021, by the Vancouver Police Department (“VPD”).
32On the strength of these materials, Holmes A.C.J. of the B.C. Supreme Court issued a warrant of arrest for the Applicant on June 24, 2021, but it was not immediately executed. Ms. Elofer was arrested only ten months later, in Toronto on May 2, 2022, by members of the Fugitive Squad of the Toronto Police Service (“TPS”). The warrant executed in Ontario was the same Canada wide warrant issued by Holmes, A.C.J. almost a year before. TPS officers did not seek a new warrant. They obviously relied upon the Canada wide enforceability of the B.C. order, as stipulated in the Code and that the warrant was actionable without further endorsement.
33Counsel for the Minister of Justice substituted a new ATP on May 3, 2022, which appropriately changed the reference to the Ontario Superior Court of Justice since the jurisdiction of process had come to be properly situate in Ontario. The Applicant was granted judicial interim release on May 11, 2022, nine days after her arrest. She commenced this application on February 15, 2023.
Overriding Principles
34There are several distinct components to this Application, but ultimately all are directed towards asking me to stay these extradition proceedings. Consideration of that question requires that I keep a number of legal principles in mind, including, first and foremost, my role as the extradition judge and the law relating to abuse of process and the level of Charter violating state misconduct that must be present before a stay of proceedings can be granted. In the sections pertaining to disclosure, I review the law establishing only a limited right of an applicant to receive additional disclosure in the extradition context, and the three-part tests in R. v. Larosa that must first be satisfied, either with respect to the arrest warrant affidavit, or with respect to the execution of the arrest warrant itself.
35Ultimately, the Applicant’s request for additional disclosure and her request to cross-examine the TPS officers who arrested her can only succeed if she can demonstrate the required “nexus” between the conduct alleged to constitute an abuse of process and the committal hearing itself. Counsel for the Attorney General addressed that issue first in her submissions. For reasons I will explain, I return to address this test at the end of these reasons.
(i) Jurisdiction and statutory framework
36Turning first to my jurisdiction, the statutory role of an extradition judge is limited to assessing 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.
37If both questions are answered in the affirmative, the extradition judge is required to commit the Person Sought to await surrender to the Requesting State seeking his or her extradition.
38Unlike under the criminal law generally, my jurisdiction to consider Charter issues in the context of extradition is statutory, not inherent, and it is limited. It flows from s. 25 of the Act. Supreme Court jurisprudence establishes that s. 25 gives the judge jurisdiction to consider Charter issues only where they “pertain directly to the circumscribed issues relevant at the committal stage of the extradition process”: see United States v. Lane, 2017 ONCA 396 at para 45; United States v. Kwok, at para. 57; M. (M.) v. United States, 2015 SCC 62 at para. 55.
39Charron J. describes that jurisdiction in United States v. Anekwu, 2009 SCC 41, again emphasizing that it is circumscribed because extradition proceedings are not “criminal proceedings” that are concerned with issues of guilt or innocence. Since extradition is concerned only with questions of equivalent double criminality and the identification of the Person Sought, this court’s Charter jurisdiction extends only to breaches that pertain directly to those circumscribed issues that are relevant at the committal stage of the extradition process itself: Kwok, at para. 57.
40Neither does that reality alter the burden of proof or cause it to shift from the Applicant to create a negative burden on the Attorney General. At para. 29, Charron J. writes in part as follows:
…I see no reason for reversing the usual rule which puts the onus of proving a Charter breach on the person who claims it. Since compliance with Canadian rules of evidence is mandatory in respect of Canadian‑gathered evidence, it follows that the record of the case should contain sufficient information to enable the person sought and the extradition judge to ascertain whether any item of evidence has been gathered in Canada and, when that is the case, some information should also be provided on how it was obtained….: Kwok, at para. 100.
41After committal, the Minister alone has the jurisdiction to decide whether to surrender the Person Sought. However, when making that decision, there are several considerations that the Minister is obliged to assess under the Act. These include allegations of Charter violations that are not connected to the extradition committal proceeding. Notably, in the context of alleged Charter violations, the Minister must decline to surrender the Person Sought if he is satisfied that to do so would be “unjust or oppressive”, having regard to all the relevant circumstances: ss. 44(1)(a) of the Act.
(ii) Stay of proceedings for abuse of process
42The Applicant says that the gravamen of the alleged abuses of process by the State in this case call for the entire extradition proceeding to be stayed. However, an order staying proceedings is well accepted as amounting to one of the most serious of results, and a “draconian” remedy: R. v. Baltovich, 2004 CanLII 45031 at para 185 (ONCA). The caselaw shows that it will be granted only in those rare and exceptional instances of state misconduct that amount to “the clearest of cases”, supported by a solid evidentiary foundation: United States v. Cobb, 2001 SCC 19 at para 38; United States v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para 59.
43Even though it will only rarely be granted, Molloy J. notes in United States v. Tollman, 2006 CanLII 31732 (ON SC), [2006] O.J. No. 3672, referencing O’Connor, that a stay for abuse of process is a sufficiently flexible remedy to apply in circumstances that go beyond conduct touching on the integrity of the judicial system and the fairness of the accused's trial. As L'Heureux-Dubé J. stated in O’Connor at para 73:
. . . In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
44The Supreme Court warns that “courts must proceed with caution” where Charter issues arise in the extradition context. In United States v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462, at para. 125, the Court instructs that “judicial intervention must be limited to cases of real substance” to ensure that we do not fail to abide by our international obligations except in the most serious of cases: see La Forest, Extradition, at p. 25.
45Only exceptional cases “of real substance” will qualify for this punitive remedy and the heavy burden to demonstrate an abuse of process warranting a stay of proceedings is the Applicant’s alone to discharge: Schmidt v. The Queen, 1987 CanLII 48 (SCC), [1987] 1 SCR 500.
46I would again note that the availability of Charter remedies in extradition matters will be limited to those cases that demonstrate the required nexus. Where a stay of extradition proceedings is requested, it is the Person Sought who bears the burden to demonstrate “a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself.”
47United States v. Whyte, 2016 ONCA 624, is one of the controlling decisions on this question. At paras 39-48, Watt J.A. carefully describes the scope and limitations on the authority and jurisdiction of the extradition hearing judge. I find that paragraphs 42, and 44-46 bear repeating in full:
42 The tests for which s. 29 provides do not permit the extradition hearing judge to consider aspects of the alleged criminal conduct on which an accused bears an evidential burden: M. (M.), at para. 52; Fischbacher, at para. 52; Schmidt, at p. 515. This means that defences and other issues on which an accused bears an evidential burden occupy no place and exert no influence on the committal decision of the extradition hearing judge: M. (M.), at paras. 53, 65-66.
44 The authority of an extradition hearing judge to consider Charter issues is not inherent, rather it emanates from s. 25 of the Extradition Act. That section gives the extradition hearing judge jurisdiction to consider Charter issues. This authority permits remedies for Charter breaches that pertain directly to the circumscribed issues relevant to the committal stage of the extradition process: United States v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 (S.C.C.), at para. 57. Where the remedy requested is a stay of proceedings, the person sought must demonstrate a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself: United States v. Khadr, 2011 ONCA 358, 2011 ONCA358, 106 O.R. (3d) 449 (Ont. C.A.), at para. 45, leave to appeal refused, [2011] S.C.C.A. No. 316 (S.C.C.); R. v. Larosa (2002) 2002 CanLII 45027 (ON CA), 166 C.C.C. (3d) 449 (Ont. C.A.), at para. 52.
45 A person sought in extradition proceedings may introduce evidence at the hearing if:
i. the evidence is relevant to the tests in s. 29(1) of the Extradition Act; and
ii. the judge considers the evidence reliable.
These twin requirements – relevance and reliability – appear in s. 32(1)(c) of the Act: M.(M.), at para. 74.
46 The relevance requirement is linked directly to the committal test in s. 29 of the Act. In other words, the evidence must be relevant to the task of the extradition hearing judge. And that task is to determine whether the test for committal under ss. 29(1) has been met. This involves consideration of the proposed evidence in light of the limited weighing the extradition hearing judge must undertake in applying the standard set for committal: M. (M.), at para. 76.
48Thus, a stay of proceedings is only possible where the Applicant has established the nexus or connection of the alleged Charter breach to the scope and limited role of the committal hearing itself. Otherwise, a claim of abuse of process is for the Minister to consider at the surrender stage of the process.
49However, even if the Person Sought overcomes this evidential hurdle and shows a clear nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself, it will only be legally appropriate to grant a stay as a remedy where the State misconduct has caused prejudice to the Applicant’s right to a fair hearing or the integrity of the justice system, and where the prejudice “will be manifested, perpetuated or aggravated through the conduct of the [hearing], or by its outcome”: see United States v. Babos, 2014 SCC 16 at paras 31, 34, 35; Romania v. Iuseain, 2018 ONSC 4640 at paras 67-71.
50That calls for “overwhelming evidence that the proceedings under scrutiny are unfair, to the point that they are contrary to the interests of justice”: R. v. Power, 1994 CanLII 126 (S.C.C.) at para 12, and there must be no other alternative remedy capable of redressing the prejudice: see Babos, at para. 39.
51If uncertainty remains, I must balance the relevant interests of the parties to determine whether a stay is called for. Denouncing misconduct and preserving the integrity of the justice system will likely favour a stay, but “the interest that society has in having a final decision on the merits” will favour continuation of the proceedings: Babos, at para 32, citing R v. Regan, 2002 SCC 12 at paras 54, 57.
52Separate from the specific interests of the parties, I must also consider Canada’s international obligations and the certainty that a stay of proceedings necessarily results in Canada failing, for whatever reason, to fulfill its obligations to an international treaty partner. Within the context of the Comity of Nations, it results in that treaty-partner being denied the opportunity to prosecute those accused of serious crimes under its own domestic law, even though the alleged crime would also be able to be prosecuted in Canada under the principle of double criminality.
53Viewed in this light, it is not surprising that in the extradition context, our Courts have only rarely considered the drastic remedy of a stay of proceedings to be an appropriate disposition. Watt J.A. explains why in United States v. Cavan, 2015 ONCA 664 at paras. 57 and 67:
57In either category, stays of proceedings for abuse of process are limited to the clearest of cases: Babos, at para. 31; O'Connor, at para. 68. The balancing of societal interests that must take place and the “clearest of cases” threshold present a claimant who seeks a stay under the residual category with an onerous burden. Cases warranting a stay in the residual category will be “exceptional” and “very rare”: Babos, at para. 44; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, at para. 91. It is only where the “affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay will be warranted: Babos, at para. 44; R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, [1989] S.C.J. No. 70, at p. 1667 S.C.R.
67First, the applicant's invocation of the residual category of abuse of process requires a showing that the state conduct risks undermining the integrity of the extradition process. Such a showing would require evidence of conduct that is offensive to societal notions of fair play and decency. Cases warranting a stay of proceedings, and thus a refusal of surrender, on this ground are exceptional and rare. Nothing that occurred here amounts to an affront to fair play and decency that is disproportionate to the societal interest in the effective discharge of our international obligations to those accused of serious crimes in the jurisdiction of our extradition partner. [emphasis added]
54Finally, where it is not the fairness of the process, but rather the integrity of the justice system that is at issue, other factors will weigh in the balance, including not only the nature and seriousness of the impugned conduct, but also whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the applicant, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.
55Typically, in the absence of a clear-cut answer, the balance may be tipped in favour of proceeding with the committal process where the public interest in adjudicating the case on its merits is perceived to be compelling. Once again, I note this demonstrates that an accused who seeks a stay under the residual category must discharge “an onerous burden” and accept that the threshold will only be met in the “clearest of cases”: see Babos, at paras. 40-41 and 44; Canada v. Tobiass, at para 92.
5. Analysis
56As noted, there are two components to the Applicant’s disclosure application.
57First, it is argued that Ms. Elofer was arrested under a warrant that was granted based upon a flawed affidavit. The Applicant claims that the issuing justice was effectively deceived into issuing an arrest warrant based upon misleading statements and the creation of inappropriate inferences in the affidavit relative to her criminality. The Applicant seeks far reaching disclosure in support of these allegations.
58The second component focuses upon Ms. Elofer’s arrest, and her claim it took place inside of her home, that is, inside the entry hallway of her father’s condominium in Toronto where she was staying at the time of her arrest. She says that the warrant did not permit her to be arrested within the home, because she says it failed to comply with either the principles in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 or ss. 529-529.2 of the Code. The Notice of Application describes further extensive disclosure that Ms. Elofer requests relating to her arrest.
59The disclosure the Applicant claims in turn informs her request that she be allowed to cross-examine all the police officers in both British Columbia and in Ontario. She requests this additional disclosure in further support of her claims that the conduct of the state actors amounts to an abuse of process that calls for a stay of these proceedings. She argues a stay is called for because the Charter violations put the integrity of the administration of justice into disrepute and would cause the public to lose faith in the police system and undermine Ms. Elofer’s expectation of privacy and security.
60In response, the Attorney General argues that the notes of the arresting officers show that the Applicant’s depiction of what transpired lacks an air of reality, and that it did not in any way offend Ms. Elofer’s Charter rights. Counsel for the Attorney General responds that the police conduct, what she argues really transpired, not only does not support the claimed Charter breaches, but more importantly fails to exhibit the nexus to the extradition proceedings required to justify any remedy, much less a stay of this proceeding.
(i) Principles of disclosure in extradition proceedings
61It is important to remember in this context that the broad ranging and fulsome criminal disclosure requirement under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 is fundamentally different from the rules applicable to disclosure in extradition proceedings.
62That difference is key. Criminal trials require full, frank, and fair disclosure, a function of the right of an accused to make full answer and defence in a domestic proceeding where his or her guilt or innocence is at stake. An accused person cannot make full answer and defence in the absence of full disclosure: see Dynar, at paras 130-131; Kwok, at paras. 99-101; United States v. McAmmond, 2005 CanLII 20 (ONCA) at para 27; United States v. Mann, 2021 ONSC 7896 at para 10; and United States v. Jones, 2022 ONSC 11, at para 43.
63In contrast, an extradition hearing is not a trial. It does not involve making full answer and defence. It does not ever involve a determination of guilt or innocence of the person sought: M.(M.), at paras 62 and 83. Its sole purpose is to fulfill the statutory role of the extradition judge to assess the evidence presented by the Requesting State, to determine whether it 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.
64As a result of that framework, the person sought for extradition will ordinarily be entitled only to the disclosure of the specific evidence that the Requesting State is relying upon to establish a prima facie case for committal, under the principle of double criminality: Dynar at paras. 134 and 144; Kwok, at paras 99-101. In most cases, that is the evidence revealed in the ROC.
65As the caselaw shows, it is not uncommon for Person’s Sought for extradition to seek exceptional disclosure to obtain evidence that will provide substance to alleged Charter violations. However, as extradition judge, I have only a narrow jurisdiction to order exceptional disclosure beyond the limits of the ROC and ATP, and it is settled law that it can only be ordered where the Person Sought satisfies the three-part test in R. v. Larosa, 2002 CanLII 45027 (ON CA), [2002] O.J. No. 3219 (C.A.) at paras. 76-77.
66The application of those tests here means that additional disclosure can only be ordered if Ms. Elofer establishes: (i) that her allegations of state misconduct, if proven, are capable of supporting the remedy sought (in this case, a stay of proceedings); (ii) that there is an “air of reality” to those allegations; and (iii) that the documents or testimony sought would likely be relevant to those allegations.
67The first criterion requires evidence that has some realistic possibility of substantiating the allegations: Larosa, at para. 78. Conjecture and speculation about what the requested disclosure might possibly reveal if produced does not meet the “air of reality” standard : see United States v. Wong, 2017 BCCA 109 at para. 26, and cases cited there.
68I find it noteworthy in the context of this test and this case, that an applicant’s assertions that further disclosure is needed in order to see or flesh out whether there was a Charter violation committed, has been found to itself amount to an admission that the applicant has failed to provide a sufficient evidentiary basis to meet the “air of reality” standard. As these reasons will show, I find that that is an important reason why this application cannot succeed.
69Wein J. put it succinctly in United States v. Gill, 2015 ONSC 2577 at para 29:
29 Importantly, the jurisprudence is clear that bald allegations of state misconduct said to amount to a Charter breach will not suffice. Rather, the applicant must provide an evidentiary foundation to support the allegations in question. Further, such an evidentiary base must be established before additional disclosure can be ordered. In other words, the applicant is not entitled to additional disclosure in order to determine whether his Charter rights have been violated (Larosa at para 85; see also United States v. Cao, 2009 CanLII 65377 (ON SC), [2009] O.J. No. 4987 (Ont. S.C.J.) at para 38; United States v. Earles, 2003 BCCA 20 (B.C.C.A.) at paras 35-37). [emphasis added]
70Neither will it be sufficient for the Applicant to raise a mere possibility that a violation has occurred. The “air of reality” test can only be met by some evidence, and not merely speculation, that provides evidential support for the alleged violation.
71It all comes down to the need for the court to serve a gatekeeping function against fishing expeditions. To put the matter simply, as Doherty J.A. explained at para. 74 of Larosa:
Fishing expeditions are not tolerated in any judicial proceeding, particularly one which is intended to provide a simple and expeditious means of responding to Canada’s international obligations.
72Finally, Larosa also requires the Applicant to establish a realistic possibility that the allegations could be substantiated by the disclosure sought, and that the specific documents requested would be relevant to the allegations being made: see Jones, at para 93.
(ii) Is the Applicant entitled to disclosure on the arrest warrant affidavit?
73The Applicant argues that in providing her affidavit as part of the application to obtain an arrest warrant, Sgt. Durkin (i) deliberately omitted important facts, (ii) mis-stated other evidence, and (iii) was generally reckless or negligent in her preparation of the Affidavit. She argues that Sgt. Durkin’s Affidavit failed to provide Holmes A.C.J. with full and frank disclosure of all pertinent facts to allow for a proper adjudication of whether a summons or an arrest warrant should be issued.
74Obviously, an affiant on an ex parte application must be “full and frank” in their disclosure, and never mislead or attempt to trick the court and the issuing justice: R v Araujo, 2000 SCC 65. In this case, however, Ms. Elofer claims that the affidavit affirmed by Sgt. Durkin in order to obtain a provisional arrest warrant for her extradition failed on all counts.
75I reject this submission in its entirety and find no air of reality to these claims that could possibly support the additional disclosure the Applicant seeks under the tests in Larosa.
76Contrary to those claims, I find that Sgt. Durkin’s s affidavit amply met her obligation to provide full, frank, and fair disclosure. There is no merit to the application for extraordinary or further disclosure, or for leave to cross-examine, on the basis that Sgt. Durkin failed to comply with her obligations.
77It is plain on the face of the affidavit in respect of the ROC, that Sgt. Durkin, a senior police officer, understood that she was required to present reasonable grounds to believe a warrant was necessary in the public interest. She specifically referred to the requirements of s. 16 of the Act. That provision imports the public interest requirement from ss. 507(4) of the Code.
78Sgt Durkin affirmed her belief that the public interest did indeed call for the issuance of an arrest warrant. She enumerated the grounds that she relied upon to justify that request for a warrant to command Ms. Elofer’s appearance before the court, rather than a summons. Those grounds, to ensure the person’s attendance in court and to prevent her from committing further criminal offences, are supported in the jurisprudence.
79Sutherland J. speaks to this issue at para. 58 in R. v. Mykell, 2021 BCPC 252 (see also the decision of Brunton J. on the ex parte application in Canada (Attorney General), 2006 QCCS 704, at para 15):
Section 507(4) has an objective “reasonable grounds” standard to establish that it is “necessary in the “public interest” to issue a warrant. Whether a warrant for Mr. Mykell’s arrest should have issued comes down to whether there were, objectively speaking, reasonable grounds for Ms. Fong to believe it was “necessary in the public interest” to issue a warrant. This will often come down to whether the informant provides information relevant to the reasonable ground’s standard…
80Sgt. Durkin set out her reasons for concluding a summons was not appropriate in the circumstances. First and foremost, a summons would not have allowed for the imposition of bail conditions to help ensure that Ms. Elofer remained within the jurisdiction and did not commit further criminal offences. That was obviously the thinking that motivated her response, though to my mind, there would have been less concern about the Applicant committing further criminal offences. Plainly, it was the flight risk potential that was by far the more significant and justifiably worrisome factor for Sgt. Durkin.
81The case law affirms that the need to impose judicial interim release conditions on an accused is an appropriate consideration for a judge determining what process to use to compel the Applicant’s attendance before the court. Judicial interim release could only be considered in circumstances where a decision was made that an arrest was called for.
82Sgt. Durkin identified the factors in the evidence before her that she found supported those grounds. They included the following five concerns: (i) The potential sentence and access to resources as a motivation for flight; (ii) The Applicant’s access to money and resources to potentially enable her to flee; (iii) The seriousness of the allegations; (iv) The Applicant’s connection to Israel; and (v) That the location of the Applicant in B.C. supported seeking a warrant from the B.C. Supreme Court. I address each of these factors in the following paragraphs.
(a) Potential sentence and access to resources as a motivation for flight
83The potential imposition of a lengthy sentence will always be a valid consideration in assessing flight risk: see G. Trotter, Law of Bail in Canada, 3d ed, (Toronto: Thomson Reuters, 2022), s. 3-3; United States v. Singh, 2014 ONCA 559 at para 10. It was entirely proper, in my view, for Sgt. Durkin to draw the attention of Holmes A.C.J. to the potential penalty the Applicant faced in the U.S
84Contrary to the assertion of counsel for the Applicant, I find that there was no exaggeration in Sgt. Durkin’s estimation that the Applicant’s sentence would likely be “significant”, having regard to the alleged circumstances of the Applicant’s particular involvement in the fraudulent scheme.
85At para. 19, the Applicant’s factum makes disturbing accusations of bad faith against the affiant:
Sergeant Durkin intentionally used the word “years” to convey that Ms. Elofer was facing decades in jail, as opposed to months, speculating that this prospective “sentence” might lead her to “take flight.” Rather than issuing a summons, Sgt. Durkin deliberately created this illusion to mislead the judge and place a young woman, without a record, other outstanding charges, prior arrests, or any police experiences, into jail. [emphasis added]
86In my view, this submission by the Applicant is simply false and, regrettably, misleading to this court. The actual statement made by the affiant at para. 52(c) was:
If Elofer is convicted, I believe she will likely be sentenced to a lengthy term of imprisonment, as her co-conspirator Elbaz, received a sentence of 22 years in prison. [emphasis added]
87Respectfully, Sgt. Durkin said not a word about Ms. Elofer facing ‘decades in jail’, nor did she use the word “years”, except in reference to Ms. Elbaz, the principal co-conspirator of the scheme. There is simply no evidential foundation for the Applicant’s overreaching accusation that the affiant deliberately and intentionally created any illusion, much less one designed to mislead Holmes A.C.J. on an extradition matter.
88Further, I am confident that the issuing judge, one of the most experienced justices of the B.C. Supreme Court, would not have been confused by different ranges of sentence appropriate to impose on the central figure who masterminded the conspiracy, as compared to a “worker bee”, even one who was as prolific and talented as Ms. Elofer was alleged to be, as one of the fraudulent scheme’s most successful retention agents.
89Contrary to counsel’s assertion, I find that the evidence does support Sgt. Durkin’s statement. Counsel suggests that Ms. Elofer’s sentence would more likely be months as opposed to years, although to my mind that suggestion was likely excessively optimistic in all the circumstances. Having sentenced many offenders over many years, it is plain to me that the term “lengthy sentence” would typically be used to refer to sentences of two years or more, serious sentences that are to be served, at least in Canada, in a federal penitentiary. There is no dispute that the ringleader, Ms. Elbaz was sentenced to a 22-year term of imprisonment.
90Further, to the extent that the sentencing chart relied upon by the Applicant demonstrates that four of her alleged co-conspirators received very lenient sentences, it has little value relevant to Ms. Elofer’s circumstances. It is of little value because I was advised by Crown counsel that those sentences were given in consideration that the four fellow employees co-operated with the police, gave evidence at the proceedings against Ms. Elbaz, and will likely again give evidence at the trial of this Applicant, whenever that may be. The better comparator is the four-year prison term given to one other significant player, Elad Bigelman, who generated some $4.0 million in fraudulent based investments.
91Four years is a lengthy sentence to my mind, but even if it was only half that length, it is equally plain to me, for the following reasons, that Ms. Elofer does face the prospect of a ‘lengthy’ sentence:
(i) Sgt. Durkin referenced evidence in the ROC that amply established that the Applicant’s performance as a retention agent was “singular.” Employee Smith, who is alleged to have worked directly with the Applicant, is expected to testify that she was “the top-performing retention agent at the company.”
(ii) The Applicant was, on her own, allegedly responsible for the second highest aggregate amount of loss sustained by investors. Sgt. Durkin noted that company records secured by the FBI that will be introduced in evidence, show that Ms. Elofer obtained more than $2.9 million in net deposits from investors while working for Numaris. The average monthly loss of $200,000 in net deposits per month attributable to Ms. Elofer caused her to achieve the dubious achievement of ranking first in performance among all Numaris and Yukom retention agents.
92In my view, this evidence from the ROC about the Applicant’s central and successful involvement in this large and highly organized criminal conspiracy would undoubtedly have supported Sgt. Durkin’s belief that the Applicant may have had access to money or resources to fund an escape. There is nothing unreasonable about the affiant having drawn that reasonable inference from the circumstantial evidence that was plainly available to her.
93In the result, I find that the Applicant’s claim that Sgt. Durkin failed to meet her obligation for “full” disclosure on this factor is simply without merit or factual underpinnings. It is untenable. The applicant has not discharged her burden of persuasion to support an entitlement to any exceptional disclosure respecting Sgt. Durkin’s belief about flight risk and its evidentiary basis.
(ii) Seriousness of the allegations
94Sgt. Durkin was also frank about the length of the Applicant’s involvement with Numaris. The Applicant alleges that the affiant exaggerated the duration of Ms. Elofer’s involvement in general language. However, Sgt. Durkin was explicit that Ms. Elofer began working in October 2015 in the same office as the co-conspirator Smith, as he is anticipated to testify. There is no evidential basis to support the Applicant’s assertion that Sgt. Durkin misstated her period of employment at the Binary Options Entities. Neither, in my view, is it reasonable to construe the inclusion of the entire period over which the scheme operated, namely between 2014 and 2016, as an attempt by Sgt. Durkin to exaggerate the length of the Applicant’s involvement. On any fair reading, Sgt. Durkin was describing the broader scope of the fraudulent activity, but she also more particularly delineated the somewhat shorter period of Ms. Elofer’s alleged involvement.
95Even if there were any inaccuracies in the narrative, and in my view, there were none of consequence, I can find no basis to conclude that the Applicant was unfairly prejudiced in any way by the description in the ROC or Sgt. Durkin’s affidavit of her role within the context of the global fraudulent scheme.
96An issuing justice considering whether to issue an arrest warrant against an individual must have information before her that permits her to understand the breadth of the scheme. That follows because the evidence appears to substantiate that Ms. Elofer’s allegedly successful deceptive conduct resulted from techniques developed over the scheme’s duration.
97Sgt. Durkin refers to the ROC as supporting the contention that new employees were trained to lie to customers about their names, location, educational background, the safety of binary options as investments, and the anticipated rates of returns. It does not appear to be an exaggeration, on the facts set out in the ROC, to suggest that the Applicant’s alleged success as a retention agent benefited directly from her training.
98I reject the Applicant’s contention that there is any hyperbole or exaggeration in Sgt. Durkin’s affidavit relative to the underlying facts of how the scheme operated. To the contrary, I find that her evidence as set out in her affirmed affidavit was a fair depiction of the criminal conspiracy, and the Applicant’s role in and contribution to that common plan. Her evidence fairly conveyed the seriousness of the allegations which the issuing justice needed to consider in determining if the warrant could and should issue: see R. v. DeMelo, 1994 CanLII 1368 (ONCA) at para. 26; Mykell, at para 58; and R. v. Shepperd, 2020 CanLII 43917 (NLPC) at para. 39.
(iii) The Applicant’s connection to Israel
99The ROC contained solid evidence justifying Sgt. Durkin’s belief that the Applicant had ties to Israel, namely:
(i) evidence that she had been issued an Israeli National ID card; and
(ii) the anticipated testimony that described Numaris as a branch of the Binary Options Entities in Tel Aviv and, as the Applicant’s workplace beginning in October 2015.
100The Applicant’s connection to a foreign jurisdiction was also a relevant factor in the issuing justice’s assessment: see Trotter, at s. 3.5. However, she has not demonstrated why her claim for exceptional disclosure should succeed, given the undeniable basis for Sgt. Durkin’s belief in Ms. Elofer’s links to Israel.
(iv) B.C. Supreme Court was proper venue for seeking the warrant
101In the section of her Affidavit labelled “Elofer is in British Columbia.”, at para 51, plainly the affiant’s objective was to demonstrate to the issuing justice that the application for a warrant was properly brought in that province, because at that time there was evidence that Ms. Elofer was residing in British Columbia with her mother. Subsection 16(1) of the Act requires that the Attorney General must believe that the person is in, or on their way to, or was last known to be, in the province from which the warrant is requested.
102The Applicant contends, however, that by referring to Vancouver Police Department (“VPD”) surveillance files, Sgt. Durkin intended in this section to mislead the issuing justice and falsely portray Ms. Elofer as a person engaged in other criminal activity, as a further factor that would weigh in favour of a warrant rather than a summons. She says it was Sgt. Durkin’s purpose to create a misleading “scenario of a criminally involved young woman”, by referencing the two pre-existing VPD files and the accompanying surveillance, when in fact Ms. Elofer faced no outstanding charges and had no criminal record at that time, or the time of her arrest a year later.
103Respectfully, I find this claim misconstrues the evidence, and in my view, the interpretation advanced by the Applicant of Sgt. Durkin’s purpose at that time is unsupportable when the particular pieces of evidence are looked at.
104My review of Sgt. Durkin’s affidavit did not reveal any language that suggested that the Applicant was, or had been, subject to prosecution or investigation for any other offence than this fraud. Instead, the pieces of evidence referenced in this section of Sgt. Durkin’s affidavit served their intended purpose to demonstrate that the Applicant was indeed present in B.C. at that time and was therefore amenable to the jurisdiction of the B.C. Supreme Court. That evidence included several items.
105On May 19, 2021, officers of the VPD observed Ms. Elofer at two addresses in Vancouver – one believed to be her residence, and the other her workplace. This is the information that Sgt. Durkin gleaned from the VPD surveillance files. There is no indication or suggestion within those files of any further criminality on the part of Ms. Elofer – they are simply the product of surveillance..
106The interpretation that the VDP files related to an international, not a domestic matter, is borne out by footnote 6 of Sgt. Durkin’s affidavit, which makes it clear that the VPD surveillance was undertaken solely in connection with the United States request for Ms. Elofer’s extradition. The footnote specifically notes that the photographs used by the VPD to confirm Ms. Elofer’s identity did not arise in connection with any domestic criminal investigation, but instead came from the RCMP’s Foreign and Domestic Liaison Unit. That is the same photograph identified as Ms. Elofer in the ROC. It is also the same photograph attached to a Red Notice issued by Interpol relating to Ms. Elofer.2
107I accept the Attorney General’s submission that these two facts provide a reasonable indication of the Applicant’s connection to a foreign prosecution at the time of VPD’s surveillance, but they provide no misleading suggestion of domestic criminality being alleged. Their principal value, combined with the two items below, is to confirm the location of Ms. Elofer in British Columbia for purposes of giving the court jurisdiction over her:
(i) Sgt. Durkin also referenced CPIC enquiries, which established that the Applicant was associated to both a B.C. and an Ontario driver’s license. The address on the B.C. driver’s license was one of the locations where the Applicant had been observed by the VPD and Sgt. Durkin believed the address to be the Applicant’s residence.
(ii) Information from the Insurance Corporation of British Columbia (“ICBC”) that the Applicant went to its office in Vancouver on June 4, 2021, to get an interim license and surrendered her Ontario driver’s license.
108I reject the Applicant’s speculation that the issuing justice would have been misled by this evidence, which was clearly intended by Sgt. Durkin to show the Applicant’s presence in B.C. I also reject the Applicant’s unsupported assertion, that the information from ICBC about Ms. Elofer was improperly shared and could only have been obtained legally by way of judicial authorization.
109The Applicant’s reference to a line of authority in BC that concluded that a person has a reasonable expectation of privacy in a passport photograph is of no application here. The nature of the information ICBC gave to Sgt. Durkin is plainly distinguishable. It did not reveal any intimate details of the Applicant’s lifestyle, or information of a biographical nature. It consisted of information readily visible and available to any member of the public. There is no reasonable expectation of privacy in what a person knowingly exposes to public view: see R. v. Tessling, 2004 SCC 67 at para 40. I accept the Attorney General’s submission that such information is more readily comparable to hotel guest information or airline ticketing information, which courts have held does not attract a reasonable expectation of privacy: see R. v. Williams, 2021 ONSC 5455; R. v. Truong, 2021 ABQB 34 at paras 18-51; R. v. Chehil, 2009 NSCA.
110Moreover, since the CPIC enquiries disclosed the Applicant’s association to both a BC and Ontario driver’s license and given ICBC protocol respecting how applications for driver’s licenses are processed, I accept that it would have been clear to Sgt. Durkin that the Applicant had attended an ICBC office to update her driving permit. The Applicant can have no reasonable expectation of privacy in this information.
(v) Has the Applicant met her onus on the remaining branches of the Larosa test
111Regardless of the purported deficiencies the Applicant identifies in Sgt. Durkin’s affidavit, deficiencies I have rejected in the preceding paragraphs, the main source of the officer’s belief pertaining to the public interest remains undisturbed, namely the evidence contained in the ROC. That evidence described serious allegations weighing against the Applicant of dishonest conduct involving significant sums of money and established her connection to a foreign jurisdiction. An arrest warrant certainly “could have issued” based on this evidence.
112I conclude on this first component of the Application that the Ms. Elofer has not impugned the plain and obvious fact that an arrest warrant could have issued since the evidence in the ROC and Sgt. Durkin’s careful explanation of the reasons why she sought an arrest warrant rather than a summons, were plainly set out before the issuing judge.
113This conclusion necessarily undermines Ms. Elofer’s position that her allegations support a stay of proceedings. Moreover, given that conclusion with respect to the issuance of the warrant, and given my gatekeeper function, I can see no foundation to conclude that further disclosure or testimony could or would be relevant: see R. v. Pires; R. v. Lising, 2005 SCC 66 at para 40.
114The Applicant’s request for further disclosure relative to the issuance of the warrant is dismissed. It follows that her request to cross-examine Sgt Durkin or other police officers in B.C. who were involved in providing information to the affiant is also dismissed.
(iii) Is the Applicant entitled to further disclosure or cross-examination respecting the execution of the arrest warrant?
115In the second component of her Application, Ms. Elofer claims that officers of the TPS breached her Charter rights when they arrested her on May 2, 2022.
116She claims: (i) that they knew and intended to arrest her within her father’s residence where she was staying at the time, (ii) intentionally failed to comply with the requirements of ss. 529 to 529.2 of the Code, which identify the pre-requisites of a so-called Feeney warrant, and (iii) that they forcefully pulled her out of that condo unit and into the hallway, to place her under arrest.
117Despite that the Applicant has received disclosure of all notes of the officers who participated in that arrest, the Applicant contends, not only that further disclosure is required, but also speculates that officers involved in the Vancouver surveillance and the Toronto arrest “most likely have more evidence implicating themselves in the judicially unauthorized entry and arrest.” She also seeks authorization to cross-examine all those officers, whether in Vancouver or Toronto.
(a) Did the officers arrest Ms. Elofer in the condominium or in the hallway?
118The conflict between the parties with respect to the execution of the warrant relates to exactly where and how Ms. Elofer was arrested. The Applicant claims that the TPS officers arrested her inside of her father’s condominium unit, not in the hallway outside of the unit. The Attorney General asserts the opposite, that she was arrested in the hallway outside of the unit, and that there is no air of reality to the claim that officers arrested the Applicant in her condominium unit or in breach of her Charter rights.
119The Supreme Court emphasized the importance of the distinction and determining ‘what happened, where, and when’ at paras. 50 and 51 of its recent decision in R. v. Stairs, 2022 SCC 11:
50 Given the privacy interests in the home, warrantless searches of the home are prima facie unreasonable. This was confirmed in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, where the Court held that even if the police have an arrest warrant, they are not generally permitted to make an arrest in a home without a specific warrant permitting entry. Parliament later codified the principles in Feeney by introducing ss. 529 to 529.5 into the Criminal Code to govern when police may enter dwelling-houses to carry out arrests.
51 Although people undoubtedly have a heightened privacy interest in their homes, searches of the home are nonetheless less intrusive than strip searches and penile swabs, which inevitably impact a person's dignity. As this Court noted in Stillman, "a violation of the sanctity of a person's body is much more serious" than an intrusion into their home (para. 42, citing R. v. Pohoretsky, 1987 CanLII 62 (SCC), [1987] 1 S.C.R. 945, at p. 949). In our view, while home searches may reveal highly personal and confidential information, they do not invariably infringe dignity and bodily integrity, as contemplated in Stillman, Golden, and Saeed.
120The focal point for this dispute is the content of the officers’ notes of the event, contrasted to the allegations in the Applicant’s and her father’s affidavits. The officers’ notes are claimed on their face to have been made contemporaneously to the events. The Applicant challenges the credibility of the officers and disputes that they were contemporaneous, but, in my view, there is no evidence proffered that can reasonably support that assertion.
121In contrast, the affidavits prepared by Ms. Elofer and her father, Meurice Elofer, were prepared more than ten months after the arrest. They are plainly not contemporaneous.
122I have read both sets of documents numerous times. It was evident to me from reading their notes that the officer’s recorded the events in their own words, as they came to them while they were writing their notes, based upon their independent recollections of the different roles they played in executing the Canada-wide warrant for Ms. Elofer’s arrest. I see no evidence to suggest any collusion by the officers in the preparation of those notes. Indeed, the differences and different modes of expression used in the different sets of notes shows they were independently drafted by each of these officers.
123As an aside, but noteworthy relative to the validity of the warrant, DC Smith specifically notes that:
ELOFER has an outstanding arrest Warrant under the Extradition Act – Signed by BC Supreme Court – Warrant Canada Wide and does not need to be endorsed for being a person sought by U.S. for fraud.
124Turning to the affidavits of Ms. Elofer and her father, they appear to have been drafted by counsel since their respective affidavits exhibit the language of a legal professional in structure and content. There is common drafting to both affidavits. A number of statements in those two affidavits are identical although numbered differently: Sabrina Elofer Affidavit, at paras. 4, 5, 6, 7, and 8, and Meurice Elofer Affidavit at paras. 9 and 10, 11, 12, and 13.
125In my experience, the use of identical phrasing suggests they were both drafted by the same legal person. I expect that was likely Mr. Gray, given the attestations on both affidavits. He appears to have been in England on February 14, 2023, and so he attested that Mr. Elofer and Ms. Elofer swore their affidavits remotely on that day, on the eve of commencing this Application on February 15, 2023, one month before this hearing.
126I wish to specifically emphasize that this is not to question that both the Applicant and her father swore that the contents of those affidavits were true, and that they believe that their affidavits accurately reflected the events as they recall them having occurred, even if based upon their recollection of events from almost ten months earlier.
127The key differences relative to the arrest itself are that when Ms. Elofer came to the door after being called by her father, she said the man who asked her if she was Sabrina Elofer did not answer after she asked what he wanted, and
“Instead, another man then appeared from down the hallway, grabbed my arm, and twisted it behind my back and turned me backwards to him to handcuff me. He was not dressed in a police uniform. A different man, also not wearing a police uniform, grabbed the door and held it open. In order to do this, he stood inside our condominium unit. I was then dragged into the hallway, barefoot. I began screaming for my father. My father rushed to the door. One of the individuals then stated that they were members of the police and that I was under arrest, but they did not say for what. I kept screaming. I tried to access my phone to get information about what was happening.
128Ms. Elofer states that it was only at the very end of the activity in the condo hallway that one of the officers showed her and her father a copy of the Warrant of Arrest which had been issued by the Supreme Court of British Columbia. The father says they gave him a copy. The officers say Mr. Elofer photographed the Warrant.
129Her father’s evidence contains several important points. First, he confirms that the police officers did knock on his door. He voluntarily opened the door, learned they wanted to talk to Sabrina, so went back into the apartment to get her, and the door closed behind him. When Sabrina came to the door, however, it seems likely that her father would have been deeper inside the apartment, not close to the door, although he does claim to have overheard the discussion.
130The notes from the TPS officers who arrested her contradict aspects of the Applicant’s Affidavit relating to the way in which she was arrested, and their exact actions related to her arrest. Their notes are contemporaneous, detailed records of each officer’s interactions with the Applicant, and her father, which were made in accordance with their professional duty. They were not made based upon past memory recalled nine months after the event.
131In Romania v. Iusein, 2016 ONSC 6758, Goldstein J. addresses the different role of the extradition judge on a motion for disclosure like this one, as compared to the role of a trial judge as it relates to whether matters have an “air of reality” to them.
132In that case, as in this one, the Person Sought made allegations against the authorities who were involved. Mr. Iusein claimed in his affidavit evidence to have been extensively tortured by the Romanian state authorities. Mr. Iuseins’s counsel argued that Justice Goldstein, as extradition judge, had to accept Mr. Iusein’s allegations of torture as having the requisite “air of reality” based on the test adopted by the Supreme Court in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.
133The question there was entirely different: whether self-defence should be left to the jury. The Supreme Court determined that what the trial judge had to do was consider whether there was a basis in the evidence upon which a reasonable jury, properly instructed, could acquit. However, in the course of making that determination the court admonished that the trial judge must not weigh the evidence, make findings of fact, or draw inferences: Cinous at para. 86.
134Even in the context of a disclosure motion rather than a jury trial, counsel argued in Iusein that this required, that the extradition judge must accept the applicant’s evidence taken at its highest. In this case, that reasoning would suggest I must accept Ms. Elofer’s affidavit evidence as true, and as therefore possessing the requisite “air of reality, and on that basis, grant the requested disclosure motion.
135Justice Goldstein was having none of it:
21 I cannot accept that submission. I am in a very different position than a judge presiding over a jury trial. The “air of reality” that the defence must establish at a jury trial is not the same “air of reality” as to be made at a disclosure motion. There are some similarities - judges at a jury trial and at a disclosure application both exercise a gatekeeper function. Different gates are being guarded, however. A judge at a trial exercises a gatekeeper function to be sure that only those defences that have a realistic possibility of success face the jury. The judge does not weigh the evidence because that would usurp the fact-finding function that is such a critical part of a jury trial.
22 On the other hand, a judge at an extradition hearing is required to prevent wasteful fishing expeditions. If no scrutiny were applied to the allegations by the disclosure judge, then any applicant could set off a series of unproductive inquiries to any department of the government. That interpretation would authorize fishing expeditions based only on someone’s untested say-so. That interpretation also flies in the face of Larosa: at para. 78:
The “air of reality” requirement comes from R. v. Kwok, supra, at 267-69. An “air of reality” means some realistic possibility that the allegations can be substantiated if the orders requested are made. (emphasis added)
23 See also: Vreeland v. United States(2002), 2002 CanLII 49652 (ON SC), 164 C.C.C. (3d) 266, [2002] O.J. No. 919 (Ont. S.C.J.) at paras. 29-37.
136I find based upon the entire body of evidence relating to the arrest event, that there is no air of reality, no reasonable foundation or merit, to the Applicant’s accusation that the police arrested her inside the condominium unit, or that she was “dragged into the hallway.” It is simply not credible.
137More specifically, I find that the combined notes of DC Smith and DC Small show plainly that (i) the officers did not enter her residence; (ii) the Applicant voluntarily stepped out of her unit into the hallway after a police officer had identified himself; (iii) the Applicant was advised the officers were executing an extradition arrest warrant, a copy of which was shown to the Applicant and later photographed by her father; and (iv) the arrest occurred in the hallway outside her unit.
138The following excerpts from the officers’ notes provide ample evidence to support those conclusions:
DC Dean: “1300. o/s area of 777 Steeles Ave. W. I am detailed to conduct u/c delivery to determine if the target is present in the TA or not. Prep.”
“1315. Enter building. Knock on door of unit 310. Male, White, older 60’s answers door. I tell him I have a package for Sabrina ELOFER. The male says wait a minute I’ll get her. I standby door, opens and a F/W heavy build, who I recognize as Elofer, in doorway. I give signal to team to confirm Elofer is person at door.”
“1320. Team approaches, I step aside, D/C Small in convo w/ Elofer, w/ team. I exit building and standby.”
DC Small: “1300. o/s. Gain entry to building. o/s 3rd Floor. #310 and 2nd unit on R side of hallway after walking R out of elevator. Stand by w/ U/C delivery. U/C delivery conducted by (24). [Note: It is evident that 24 is shorthand for PC Dean.] Signal given. Approach door and observe POI in doorway of unit. ID as police. Ask F to step into hallway. F complies. Take control of F.
“1320. Advise under arrest or warrant for her arrest under Extradition Act. Handcuff to rear. No injuries.”
DC Smith: “1300. Arrived o/s @ 777 Steeles Ave W. Team enters building. DC Dean acting in an undercover capacity knocks on apt. 310 posing as delivery person. Can hear door open and hear D/C Dean in convo. Observed D/C Small approach apt. 310. I start to walk over to apt as well. As I approach D/C Small in hallway with female. I believe female to be Sabrina ELOFER, female looks like DL photo of ELOFER. I approach and speak with ELOFER. I call her by her name “Sabrina ELOFER.” ELOFER looks at me and replies “Yes.” I explain that there was an arrest warrant under Extradition Act issued for her arrest. She was wanted in the US for fraud. ELOFER becomes very upset. I try to calm her down and give her a copy of the warrant to read.”
Det. French: “1300. o/s building w/ team (24 to do UC door knock)”
“1320. IR. 24 gives signal As I approach apt 310 19 speaking w/F in hallway.” [Note: It is evident that 19 is shorthand for DC Small.] 49 speaking w/ F in hallway. 15 explains info to F who answers to Sabrina Elofer. F upset, crying and shouting. Speaking frantically. Father o/s calming her down (Maurice). Sabrina has anxiety and has meds for anti-depressants. Ask Maurice to gather her medication.”
“1333. Escort ELOFER to P-lot”
139It is argued the officers’ notes are not credible, on the basis there is no “record” to prove when they were made. Applicant’s counsel suggested in argument that one single reference in PC Smith’s notes to the discussion several days earlier on April 27, “puts the lie to contemporaneity” of the officers’ notes, seemingly in their entirety. Presumably, this is the reason the Applicant seeks to cross-examine these officers. However, the Applicant offers no substantive proof to refute that the notes from May 2, relating to the events of that day are contemporaneous to the events, that were all made on the day of the arrest, May 2, 2022. Moreover, the foregoing excerpts show that the notes are detailed.
140There is no note by DC Smith from the earlier day to record that the April 27 information was received on April 27. However, to me the point is innocuous, simply recording on May 2 that on April 27 “myself and Detective French contacted by DOJ Lynne Axmith advising ELOFER may be back in Ontario.” Respectfully, that single reference cannot support an allegation that the officers were untruthful when they recorded that they made their notes about what happened on May 2, 2022, on May 2, 2022. I find the suggestion of potential dishonesty on their part is unsupportable.
141I agree with the Attorney General that the Applicant has not raised any cogent basis to impugn the credibility or reliability of the officer’s notes. The Applicant effectively claims these four officers conspired together to falsify their separate accounts of the events that transpired, as recorded in the notes. At its core, that is what the Applicant is alleging: that they all lied about what happened, and then colluded to fabricate a cover up story. That appears to be the basis for the Applicant’s request for an order permitting all of them to be cross-examined.
142I have considered the Applicant’s request to cross-examine in these circumstances compared to the request of an accused to cross-examine an affiant in a Garifoli application. It seems to me, with one exception, that there is not a lot of difference between the principles that would apply to each, and that comparison is useful in considering whether this is a remedy that ought to be granted. It is similar in its differentiation to the circumstances referred to by Goldstein J. above in Iusein.
143Cross-examination on a Garifoli application will only be permitted for the purpose of questioning the affiant’s reliability and credibility relating to the content of an ITO. Here, the Applicant questions the officers’ reliability and credibility relating to the content of their notes. However, even in a Garifoli context, an accused does not have an absolute right to cross-examine the affiant. Leave to cross-examine is required, and as Watt J.A. observes in R v Sadikov, 2014 ONCA 72, at para 39, leave is not granted, just for the asking, but only if there is a "reasonable likelihood" that cross-examination of the affiant will elicit testimony of probative value, including the discrediting of one or more of the preconditions to issue the warrant: R v Pires; R v Lising at paras. 3 and 40; Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, at p. 1654; R v Soltan, 2019 ONCA 8, at para. 6; Sadikov, at para 45; R v Green, 2015 ONCA 579, at para 34.
144Generally, cross-examination would only be permitted on issues of credibility and reliability of the affiant and their sources, and the order would generally require some cogent evidence that could inform calling into question the credibility, or reliability, or the “full, frank, and fair” disclosure of the affiant. Perhaps most importantly, cross-examination on a Garifoli application should not be permitted where "there is no reasonable likelihood that it will impact on the question of admissibility of the evidence." Pires;Lising, at para. 31.
145The exception I mentioned to the suitability of this comparison relates to the most important point. When an accused seeks to cross-examine an affiant on a Garifoli application, it will always be on a trial and in furtherance of the right of the accused to make full answer and defence, where the guilt or innocence of the accused is at stake. In contrast, there is no innocence at stake issue in an extradition proceeding, and the right of full answer and defence is not a matter of concern for Canada, but rather for the state seeking extradition.
146I find that the Applicant’s assertions impugning the credibility and reliability of the officer’s notes, her seeming claim that they are contrived and falsified, have no merit or any air of reality to them, and there is no cogent reason on the face of this record to doubt that these notes, like all police officers’ notes, generally enjoy the attributes the Supreme Court ascribed to officers’ notes in Wood v Schaeffer, 2013 SCC 71 at p. 152:
The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate.
147There are other internal features of the officers’ notes that reinforces my finding that they were individually made, if not exactly at the time of the events, shortly thereafter and certainly by the end of their shifts that day. For example, both PC Smith and PC Small record that they commenced the transfer of Ms. Elofer to the Vanier Correctional Facility in Milton at 1400 hrs. But they must have looked at their watches a minute or two apart on arriving, because PC Smith records their arrival at 14:36 hrs., but PC Small noted the arrival time as two minutes later. This discrepancy is minor but supportive of the individuality of the officers’ notes.
148The Applicant’s evidence shows she was very upset by the arrest. Her distress is corroborated in the officers’ notes and in her father’s affidavit. She was distressed to the point that she needed her medication to calm her. Given the description of her hysterical behaviour following the arrest, and that she was hyperventilating, it seems likely that Det. French’s description of having asked her father to get her meds is accurate:
“F upset, crying and shouting. Speaking frantically. Father o/s calming her down (Maurice). Sabrina has anxiety and has meds for anti-depressants. Ask Maurice to gather her medication.”
149Regardless, it is clear from both Ms. Elofer’s and her father’s evidence that her father did not view the actual arrest, so he is incapable of providing insight on how it occurred other than by repeating the hearsay evidence of his daughter. The Applicant states that her father had walked away from the door, while Maurice Elofer’s response seems to confirm that he was some distance away, even if within earshot of her screaming:
I then heard yelling from the hallway. Sabrina yelled “Daddy, Daddy, Daddy.” I rushed to the door…
150It is also relevant that the officer’s notes reflect that the Applicant’s father’s focus at the time was on the well-being of his daughter. He was trying to calm her down and getting her medication. His affidavit confirms his pre-occupation with his daughter’s state. This concern for and interest in the state of high anxiety the Applicant was experiencing was evident in not only the father’s affidavit, but also the officers’ notes.
151Finally, it is important because of the effects the passage of time can have on one’s memory of events to note that both the Applicant and her father’s affidavits were sworn February 14, 2023, almost 10 months after the events occurred, unlike the officers’ notes, which are a contemporaneous memorialization of the event.
152Ms. Elofer claims that the police clearly intended to arrest her at her residence, but I am unable to discern any evidentiary foundation to substantiate this claim. Indeed, the officers’ notes contradict it insofar as they express uncertainty in their notes about Ms. Elofer’s connection to the condominium unit before going to the building. This is evident from DC Smith’s notes which state: “It’s unknown what the connection/association to address is or if ELOFER will be at this address or using address as a mailing address.” Neither does the Applicant advance any evidential basis to substantiate the statement that the police were aware she was living in a condominium unit owned by her father before they executed the arrest warrant.
153Having considered the evidence in its entirety, I am not persuaded that Ms. Elofer was arrested inside of her father’s condominium, or that it was likely she was. I reject the statement that the police forcibly pulled her out of the apartment into the hallway. I find that the officers were not certain whether she was living there or associated with her father’s residence in another way, but that uncertainty did not call upon them to obtain a different warrant.
154Since I have found that the officers did not enter the Applicant’s father’s condominium unit, and that she was arrested in the common hallway of the building, exactly as the officers describe in their detailed notes, the issue of consent to entry does not arise. I find no basis under Larosa to order extraordinary disclosure on this issue, and certainly no basis to permit cross-examination. Regrettably, I find this is little more than a fishing expedition that can, unfortunately for the Applicant, not give rise to any of the relief she seeks.
155Similarly, in the absence of an entry, or evidence of an intent to enter into her dwelling-house, the Applicant’s argument respecting the need for a Feeney warrant is inapplicable and moot: see R. v. Webster, 2015 BCCA 286 at paras 26-27, 79-85; R. v. Beune, 2005 BCPC 175.
(b) The Officers’ entry into the common hallway did not infringe s. 8 of the Charter
156The Applicant argues that the police are required to obtain judicial authorization before entering a condominium building but I agree with the Attorney General that the statement is overly broad and inaccurate.
157As authority for the proposition, the Applicant cites the Court of Appeal’s decision in R. v. White, 2015 ONCA 508. However, in my reading of the decision, Justice Huscroft’s reasons do not support that principle. While he certainly confirmed the existence of rights to privacy, he observed at paras. 41 and 44, that a determination whether a reasonable expectation of privacy attaches to a common area within a condominium building will always be a context-specific enquiry:
It is clear that lower courts have rendered decisions rejecting reasonable expectation of privacy claims in several cases involving the common areas of multi-unit buildings: see, e.g., R. v. Piasentini, [2000] O.J. No. 3319 (S.C.J.); R. v. Simpson, [2005] O.J. No. 5056 (S.C.J.), revd on other grounds [2007] O.J. No. 4510, 2007 ONCA 793, 231 O.A.C. 19; R. v. Nguyen, [2008] A.J. No. 1361, 2008 ABQB 721, 462 A.R. 240, affd [2010] A.J. No. 495, 2010 ABCA 146, 477 A.R. 395;and R. v. Verrett, [2013] A.J. No. 1237, 2013 ABQB 658, 574 A.R. 212. But the lesson from Edwards is that the reasonable expectation of privacy is a context- specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.
158R. v. Yu, 2019 ONCA 942 is a more recent decision analyzing the extent to which a person may have a reasonable expectation of privacy in common areas of a multiple unit building. There, Tulloch J.A, as he then was, reiterated that the assessment of a reasonable expectation of privacy in common areas is to be conducted in view of the totality of the particular circumstances, taking account of factors enumerated by the Supreme Court of Canada in R. v. Spencer and R. v. White: see Yu, at paras 67-69, 81: (i) The subject matter of the alleged search; (ii) The claimant’s interest in the subject matter; (iii) Whether the claimant had a subjective expectation of privacy in the subject matter; and (iv) Whether the subjective expectation of privacy was objectively reasonable.
159In the context of a multiple unit building, those factors are (i) The degree of possession or control exercised over the common area by the claimant; (ii) The size of the building: the larger the building, the lower the degree of reasonable expectation of privacy in common areas; (iii) Whether there is a security system or locked doors that function to exclude the public and regulate access; and (iv) Ownership of the property: Yu, at paras 59, 69, 84, 87, 89, 94.
160Regrettably, while the Applicant claims to have a reasonable expectation of privacy with respect to the hallway outside her father’s unit, in neither her written submissions nor in argument did she advance any legal analysis based in the specific facts of her case to support her argument. There was no comparison made between the circumstances at 777 Steeles Ave., W, and the circumstances in other potentially relevant cases. The Applicant has not established her claim to an air of reality standard, let alone to the standard of a balance of probabilities. In the absence of any analysis, her claim amounts to an unsupported assertion that cannot meet the relevant tests, and that should be dismissed.
161Nevertheless, to ensure a complete consideration of all the Applicant’s submissions, and assuming that my preceding conclusion is wrong, which I reject, I consider the other privacy related arguments advanced by the Applicant in support of her claim. However, as the following paragraphs will show, at the end of the analysis, I have concluded that in the face of the principles set out in R. v. Yu, and other cases, the Applicant cannot succeed in establishing a reasonable expectation of privacy in this case that is capable of undermining the legality of the police conduct.
(c) The subject matter of the alleged search was the Applicant’s physical address
162In R. v. Marakah, the Supreme Court zeroes in on the key question that underlies the determination of whether and to what extent a person may have a privacy interest. It notes, at para. 16, that the cases cited there show that the first step is to identify the subject matter of the inquiry or search. It should be considered carefully since the subject matter may affect whether the applicant has any reasonable expectation of privacy.
163The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission. Instead, as Doherty J.A. states in R. v. Ward, 2012 ONCA 660, at para. 65, it should be determined by reference to the nature of the privacy interests potentially compromised by the state action. The court’s task, as Doherty J.A. put it in Ward, is to determine “what the police were really after” (para. 67): see also Yu at para. 76.
164While, in many cases, defining the subject matter of the search will be uncontroversial, in cases in which it is more difficult, the Court has taken a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake. The Court has looked at not only the nature of the precise information sought, but also at the nature of the information that it reveals: Spencer, at para. 26.
165In answer to the question, “what were the police really after”, there are two obvious answers. First, it is evident that the officers’ intent was to confirm the Applicant’s connection to unit 310, 777 Steeles Ave, if any, and if they were able to confirm that was her residential address or where she was staying, and even better, if she were to be present at that location, that would provide the officers with a potential location to execute the arrest warrant. Second, however, the officers were not really searching for anything, in the usual sense that a search warrant is granted. They were simply seeking to find the accused person who was wanted for extradition to the United States under process issued a year previously, and to serve her with that warrant of arrest.
166There are plainly significant distinguishing features between Whyte, or even Yu, and this case, and the nature of the police activity in this case was significantly less intrusive than the police conduct in those cases. In White an officer entered a multi-unit condominium building on three occasions without consent. During his visits he walked through the hallways, entered a storage area, where he viewed the contents of the accused's storage locker, and he hid in a stairwell, where he overheard the activity within the accused’s unit. The officer used this information to secure a search warrant. Unlike in this case, it jumps out that even before the officer’s first surreptitious entry, the police already knew that the accused resided within the building, and they knew which unit was his. That was not the case here.
167In Yu, the police conducted surveillance during a series of warrantless entries into common hallways to determine the fact and place of the multiple accused persons’ residence in the condominium buildings. It is clear from the Court’s discussion that this was part of an ongoing investigation and what was at issue were the observations the police were able to make through their presence in the common hallway.
168What is significant about these factual scenarios, is that they show that the privacy right does not attach to the mere fact the person lived in the particular building, but rather is attached to what it was that was observed inside the building: see R. v Abo Zead, 2020 BCSC 2145 at para. 92; Yu at paras. 82-87; White at paras. 41-52; and R. v. Pipping at paras. 20-33. That is, “what were the police really after?”
169The privacy interest is in the subject matter that the police are investigating. Furthermore, I agree with the Attorney General that the fact a person resides at a particular residence or has a connection to it is not the type of personal information that attracts Charter protection: see Drakes at para.10; R. v. Saciragic, 2017 ONCA 91, at paras. 29-34. Again, this serves to emphasize that it is the subject matter of the inquiry in the location, rather than the presence of the person related to that subject matter, that attracts the privacy expectation.
170Here, the officers’ activity was of a markedly different and profoundly more innocuous nature than in cases like White or Yu. They did not engage in any surveillance. They were not investigating a crime. Neither were they gathering evidence to incriminate the Applicant. Ms. Elofer was already the subject of a valid Canada wide arrest warrant emanating from a foreign investigation and prosecution. That arrest warrant was able to be served on her in Ontario without the further endorsement of an Ontario judge.
171Although I accept that their notes do not say how they came to enter the building, there is no evidence that the officers did so surreptitiously or that they attempted to keep their presence in the building secret. The police activity consisted of entry into the common area of the building to reach the door of the condominium unit, in order to communicate with the occupants of Unit 310, in order to determine whether Ms. Elofer was located there, and if she was, to communicate with her, advise her that they were there to execute the warrant issued for her arrest by the British Columbia Supreme Court, and to then take control of her to effect the arrest. Their activity was commensurate with activity that has been accepted as permissible under the implied license doctrine: see R. v. Evans, 1996 CanLII 248, at paras. 6-14 (S.C.C.); R. v. MacDonald, 2014 SCC 3 at paras. 25-27; R. v. Le, 2019 SCC 34 at paras. 125-127; White, para. 56; R. v. Ndikuriyo, 2018 ONSC 7592 at paras. 153-159; Beune. See also R. v. Vu, 1999 BCCA 182 at paras. 38-41, where the police attended an apartment unit to confirm the identity of the accused by looking at him. Vu is cited with approval in R v Van Wyk, 1999 O.J. No. 3515 at paras. 24-35; aff’d on appeal [2002] O.J. No. 3144 (C.A.).
172The Applicant and her father protest that they had no idea the person or persons at their door were police officers in undercover clothing. However, as Karakatsanis J. instructs in R. v. Mills, 2019 SCC 22 at paras 40-44 and 47, the fact that one of the officers posed as a delivery person to communicate with the Applicant does not on its own engage s. 8 of the Charter. Paragraph 43 is particularly relevant to the circumstances here:
43Similarly, undercover police investigations have long been recognized as legitimate and important law enforcement tools. Police do not need to obtain judicial pre-authorization before beginning an undercover investigation. This Court has acknowledged that police may employ creativity and subterfuge in their work of preventing and investigating crime, although the police conduct must not threaten the integrity of the criminal justice system: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, [2000] 2 S.C.R. 3, at paras. 66-67, citing Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 697 (per Lamer J. (as he then was), concurring); R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at pp. 916-17; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 83.
173Here, the Applicant’s father opened the door of his unit, even though there had been no buzz for entry from the front door of the building. Further, both her father and Ms. Elofer responded voluntarily to the undercover’s officer’s question about the Applicant’s identity and her residence at the address. Section 8 is not violated when police simply communicate with an individual even when the person is un-aware they are speaking to police.
(d) Was there a subjective or objective expectation of privacy in the physical address?
174Counsel for the Attorney General properly concedes on this application that the Applicant does have an interest in her physical address, but also argues, correctly in my view, that the limited extent of that interest is not a significant factor in the reasonable expectation of privacy analysis: see White at paras 31-58.
175Despite the Applicant and her father’s statements that they regulated entry into their building via a buzzer system, they both acknowledged in their affidavit evidence that the system was not used on May 2, 2022. When Mr. Elofer heard a knock at the door, he knew there had been no buzz from the front door entry to the building. Yet, he came to the door, looked through the peephole in his door, thought he saw a delivery person and opened the door.
176As such, even though formal permission to enter had not been requested, both the Applicant and her father did not hesitate in responding to the door knock at their unit. Moreover, it is evident that both the Applicant, and her father, voluntarily disclosed or confirmed her identity and, by necessary implication, and the response “I’ll get her” from the father, also confirmed that she was present there that day, whether or not it was where she “resided”.
177Appellate authority confirms in these circumstances that their evidence minimizes a subjective expectation of privacy relative to the fact of Mr. Elofer’s residence there, to whom the residence belonged, or in the common hallway. Any reasonable claim by Ms. Elofer of a subjective expectation of privacy in those locations when her presence there or her residence there is as an invitee of her father, is certainly further diminished.
178Neither does the caselaw support the existence of an objective reasonable expectation of privacy in their mere physical address: R. v. Saciragic, 2017 ONCA 91, at paras. 29-34; Yu, para. 76. Miller J.A. notes in Saciragic that the fact of the address and that it was where Mr. Elofer lived, was publicly available information to which many people have access, including delivery services or other members of the condominium building. Ms. Elofer’s derivative right of privacy is virtually entirely attenuated.
179First, it is the subject matter, not the person who enjoys an expectation of privacy, but the police were not even certain she was camping out in her father’s condo, and even once it was confirmed by seeing her standing there at the door that this was the location where she appeared to be residing at that time, there are no intimate details whatsoever revealed about her personal choices or way of life, except perhaps that one might surmise that she appeared to like to walk around barefoot. In the absence of a reasonable expectation of privacy, the officers’ entry into the common hallway did not constitute a search and s. 8 of the Charter is not engaged.
(e) Has the Applicant met her onus on the remaining branches of the Larosa test?
180It is my view, and I find that the Applicant has not met her onus on the remaining branches of the Larosa test. Even if I were to find that the Applicant had a reasonable expectation of privacy in the common hallway outside of her father’s unit, I would find that the presence of the officers there for the judicially authorized purpose of arresting her on the outstanding Canada wide warrant is incapable of supporting a stay of these extradition proceedings.
181The Court’s comments in Yu, from its reasonable expectation of privacy analysis and its analysis under ss. 24(2) of the Charter show the onerous difficulty that faces the Applicant on this point. The Court did conclude that the accused in Yu did have a reasonable expectation of privacy in the common hallway that was the focus of that analysis. It also found that the warrantless entry did breach the accused’s s. 8 Charter rights, but it repeatedly observed in its reasons that the expectation of privacy was “low” or “diminished”: Yu, at paras. 59, 69, 84, 87, 89, 94. Those observations are equally applicable here.
182Finally, even though it accepted that a violation of s. 8 had been established, Tulloch J.A. declined to grant a remedy insofar as the court concluded under its ss. 24(2) analysis that the state conduct in entering without consent “was not serious” and had only a minor impact on the Charter-protected interests of the accused because what they did in the hallway “could be in the view of whoever entered the building and went to their hallway”: Yu, at paras. 60, 151.
183In my view, the application of these principles to the present circumstances shows no abuse of process by police officers. They were told that the subject of this Canada wide arrest warrant might be in Ontario at her father’s condominium apartment, so they took steps to learn from one source that this could be true, but they could not verify it for certain. So, it is not surprising to me that, acting on good faith, they went to apartment 310 at 777 Steeles Ave. W., and once they determined that there was a person there who appeared to be Ms. Elofer, they quite properly arrested her as they were duty bound to do. I am satisfied and find that the police conduct here did not amount to an abuse of process.
184It follows that the Applicant’s request for further disclosure relating to the execution of Ms. Elofer’s arrest warrant fails. Moreover, given that the Applicant already has all of the officers’ notes regarding their entry, she has not established that the further disclosure she seeks would be of any use or relevant, or more importantly, amount to little more than a prohibited fishing expedition to bolster a Charter violation that, in my view, has no air of reality to it.
(iv) Has the Applicant established a nexus to the committal hearing
185I return now to consider whether the Applicant’s submissions disclose “a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself”: Whyte at para. 27.
186The requirement is clear. I must determine whether the Applicant has established a “nexus”, a “connection”, between the Charter breaches alleged against the State authorities in this case and the extradition process itself over which I am presiding. The Applicant bears the onus to connect the allegations she makes to the committal hearing itself. She bears the onus to establish the nexus between the extraordinary disclosure she seeks, and the committal hearing.
187Counsel for the Attorney General argued vigorously, not only that the applications for extraordinary disclosure and cross-examination of the police officers should be dismissed, but that the application for a stay of proceedings based upon abuse of process must also fail and that I should dismiss it now.
188At the hearing of the Application, counsel for the Attorney General argued this issue first, and claimed it should be the first and foremost argument that I should consider. She also invited me to dismiss this matter in its entirety for failure by the Applicant to satisfy this requirement alone, without need to consider the facts or merits of the requests for extraordinary disclosure.
189On the other hand, I declined that invitation and have saved this analysis for last. I did so because I considered it necessary to engage in the disclosure request analysis before I could determine whether the required nexus would or could be present on one of the two grounds, either unfair hearing or gross injustice.
190The most important question is whether the Applicant can put cogent “meat” on her allegations of breaches of her Charter rights, sufficient to support the two requested results. The first is that the otherwise streamlined process of the extradition committal hearing should not only be delayed, but delayed and expanded to ensure that the alleged violations of her Charter rights are fully aired, and their air of reality and viability under Canadian law determined before a committal hearing. The second is that she be permitted to cross-examine all the police officers involved in this case.
191The point is seminal because an extradition judge only has jurisdiction to allow extensive and extraordinary disclosure to be granted as part of the extradition process where the applicant can demonstrate that the alleged Charter breaches have the necessary nexus, the necessary connection, to the extradition committal hearing itself.
192The law is clear that I serve only a limited role as the extradition judge. Yet, in a case like this where the Applicant seeks the extraordinary remedy of a stay of proceeding, the onus will always fall to her to establish that there is a clear nexus between the remedy sought and the committal hearing, that is, between the State’s alleged Charter infringing conduct against her as the Person Sought, and the exercise of my statutory functions as the extradition judge on the committal hearing: Whyte at para. 44.
193If she is unable to do so, then my role is simply to establish under section 29 of the Act whether there is a prima facie case to issue an order of committal for the extradition of the Applicant to the United States on the offence they allege, which is claimed to amount to fraud in Canada under the principles of double criminality. Where the Applicant fails to establish that critical nexus, I have no jurisdiction to grant a remedy. The Applicant can look only to the Minister for relief at the surrender stage of the process.
194The Applicant acknowledges that it is her burden to establish the existence of the required nexus. At paragraph 42 of her Factum, she states:
Third, “the extradition judge, unlike the preliminary inquiry justice, may grant Charter [or common law] remedies that pertain directly to the circumscribed issues relevant to committal.” As the court noted in Anekwu, “[a] Charter breach, allegedly committed in the gathering of evidence in Canada, is obviously one of those issues that may give rise to Charter remedies”: see M. (M.), at para. 40; United States v. Fraser, 2015 BCSC 411
195Here, however, unlike in some other cases, there is and was no Canadian gathered evidence. The evidence in the ROC was gathered entirely from sources outside Canada.
196United States v. Cobb, 2001 SCC 19, serves as one blatant example where the circumstances were found to meet the nexus requirement, but plainly, process errors will not generally be enough. Instead, as Arbour J. wrote for the Supreme Court at para 26:
26 The extradition judge is therefore competent to grant Charter remedies, including a stay of proceedings, on the basis of a Charter violation but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the committal stage of the extradition process.
197In Cobb, as in this case, the fugitive was a Canadian citizen who was charged with fraud and conspiracy to commit fraud in the United States. The United States sought his extradition, but the extradition judge stayed the extradition proceedings, on the basis of comments made by the American judge and the American prosecutor. They had warned that those fugitives who did not co-operate in the extradition process would get the maximum jail sentence and would be subject to homosexual rape in prison. The Court of Appeal set aside the stay and remitted the matter to the extradition judge. The fugitive appealed successfully to the Supreme Court.
198By placing undue pressure on a Canadian citizen to forego the extradition process in Canada, the Supreme Court found that the United States disentitled itself from pursuing its extradition request. The intimidation related directly to the proceeding before the extradition judge, thereby engaging the doctrine of abuse of process and the fugitive's right to fundamental justice under s. 7 of the Charter. At para 33 the court states:
33 The respondent argues that any concern that the appellants may face unfair proceedings in the United States is a matter for the Minister, not for the extradition judge, whose sole function is to assess the sufficiency of the evidence. True as this may be, it misses the real issue here. The issue at this stage is not whether the appellants will have a fair trial if extradited, but whether they are having a fair extradition hearing in light of the threats and inducements imposed upon them, by those involved in requesting their extradition, to force them to abandon their right to such a hearing. The focus of the fairness issue is thus the hearing in Canada, to which the Charter applies, and not the eventual trial in the U.S., which it may be premature to consider pending the Minister's decision on surrender. Conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge.
199The extradition judge had the jurisdiction to control the integrity of the proceedings before him and to grant a remedy, in common law and under the Charter, for abuse of process: Cobb, at paras. 52-53. The court found that to proceed further with the extradition hearing would violate the principles of fundamental justice because the United States would not repudiate its conduct.
200Plainly there, the Applicant discharged the onus to show that the alleged Charter infringing conduct by American state actors was a blatant attempt to interfere with the conduct of Canadian judicial proceedings, namely the extradition committal hearings themselves. The connection or nexus was obvious. The proceedings were stayed.
201United States v. Tollman, 2006 CanLII 31732 (ON SC), [2006] O.J. No. 3672, is another case where the Canadian extradition process was stayed because of improper state conduct. The Applicant was the president of a company in the United States that was part of larger family-owned and operated international conglomerate of companies with its head office in England. He lived in England. In November 2004, the United States charged him with income tax evasion for years prior to 2001 but the complaints setting out the charges were sealed.
202In January 2005, the U.S. prosecuting attorney learned that the applicant was going to be on a business trip and would be stopping in Toronto. After two weeks of communication, the prosecutor evidently reached an apparent agreement with Canadian authorities to detain the applicant once he arrived in Canada, and to deliver him to the United States border for handover to United States' authorities. Upon his arrival in Toronto, the applicant was detained by immigration authorities as inadmissible on grounds of serious criminality. He was held in a detention centre for 10 days. The Immigration Review Board ordered his release on strict conditions and under significant cash deposits and sureties, but the immigration official on duty in the detention centre refused to release him. The next evening, at an ex parte hearing following the thwarted release order, the prosecuting attorney obtained a provisional arrest warrant under the Act, filing a supporting affidavit alleging urgency. The United States then commenced extradition proceedings. The applicant brought an application for stay of proceedings on basis of abuse of process.
203The basis of his claim was plain. The United States had deliberately set out to thwart the Canadian extradition process, initially seeking to use Canadian immigration officials as parties to effect his removal in order to bring maximum pressure to bear on him in the hope he would agree to deportation and waive his rights under the Act.
204The stay was granted. Molloy J. found that applicant had met his heavy burden and established one of clearest of abuse of process cases, by reason of prosecutorial misconduct. The abuse of process occurred when the United States sought to use the Canadian immigration system for the purpose of effecting extradition, contrary to extradition treaties and legislation. The immigration authorities had no legitimate immigration concerns about the applicant as he was in Canada openly and legally and had no knowledge of the sealed charges. Molloy J. found it to be a deliberate and outrageous breach of fundamental justice. Although no abuse of process existed in respect of the extradition hearing itself, she concluded that proceeding with the committal hearing would breach fundamental justice no matter how fairly the hearing might be conducted.
205I have previously made extensive reference to Whyte, which shows that unless the applicant can prove the existence of the required nexus, the application for a stay of the extradition proceedings will fail. In Whyte, the Court of Appeal ultimately concluded that no relief could be granted because that connection was absent, and it was the courts of the United States to which the Applicant should look for relief in the course of the trial that would take place there.
206Finally, I refer to United States v. Khadr, 2011 ONCA 358. That was a case where the proceedings were stayed based upon the residual power.
207Khadr’s story of state misconduct is well known. Khadr was born in Canada in 1981. He moved with his family to Pakistan when he was three years old, and then moved back and forth between Canada and Pakistan until 1997 when the family settled in Pakistan. Khadr's father was associated with Osama Bin Laden, and the Khadr family had moved to Afghanistan by the time of the 2001 invasion by coalition forces. Sometime after the invasion, the Khadr family returned to Islamabad, Pakistan.
208The United States alleged that in 2003 and 2004, Khadr procured munitions and explosives to be used by Al Qaeda against the United States and coalition forces in Afghanistan. They paid the Pakistani intelligence agency, the Inter-Services Intelligence Directorate (the "ISI"), half a million dollars to abduct Abdullah Khadr in Islamabad, Pakistan in 2004. Following his abduction, Khadr was secretly held in detention for fourteen months. He was beaten until he cooperated with the ISI, who interrogated him for intelligence purposes. The ISI refused to deal with the Canadian government but did have contact with a CSIS official. The American authorities discouraged the CSIS official's request that Khadr be granted consular access, and the ISI denied access for three months.
209The ISI ultimately refused to bring Khadr before the Pakistani courts. After the ISI had exhausted Khadr as a source of anti-terrorism intelligence, it was prepared to release him. However, the United States then insisted that the ISI hold Khadr for a further six months in secret detention, to permit them to conduct a criminal investigation and start the process for Khadr's possible rendition to the United States. The FBI interrogated him in July 2005 while he was detained for those six months with a view to criminal prosecution in the United States.
210The American authorities then asked the ISI to allow for Khadr's rendition to the United States, but ISI refused to do so without permission from Canada and Canada refused to consent. Finally, on December 2, 2005, Khadr was sent to Canada. After he was finally repatriated to Canada, Khadr voluntarily agreed to participate in several interrogations, including one for the FBI. The same FBI officers who had interrogated him in Pakistan conducted an interview at the Delta Hotel in Toronto. Many of the questions posed during the Delta interview made reference to Khadr's previous statement in Pakistan. Khadr was fully cooperative and forthright in his responses.
211The U.S decided to pursue criminal charges against him. On December 17, 2005, Khadr was arrested on a Provisional Arrest Warrant and detained for extradition to the United States. He was denied bail and held in custody for five years until the extradition judge issued the stay of proceedings on August 4, 2010.
212The Superior Court judge who conducted the extradition committal hearing concluded, at para. 150, that "the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable". The judge granted a stay of proceedings on the basis that to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process.
213On behalf of the United States, the Attorney General of Canada appealed to the Court of Appeal arguing that the extradition judge had no jurisdiction to grant a stay, and that even if he did, this case did not qualify as "the clearest of cases" warranting a stay.
214The Court dismissed the appeal and brought the long and painful process to an end. It found there was no basis to appeal against the extradition judge's finding that the human rights violations were shocking and unjustifiable. They were. Because of the requesting state's misconduct, proceeding with the extradition committal hearing threatened the court's integrity. Responding to that threat was a judicial matter to be dealt with by the extradition judge, not an executive decision reserved to the Minister. The extradition judge correctly concluded, at para. 150, that "[i]n civilized democracies, the rule of law must prevail".
215Khadr is important because, as in this case, the Attorney General argued the extradition judge had no jurisdiction to grant a stay, and that even if he did, the case did not qualify as "the clearest of cases" warranting a stay. The difference that is so striking is the difference in the quality of state misconduct that was found to warrant a stay in that case, compared to the conduct that is said to call for the same result here.
216Here, the Applicant does not seek a stay of proceedings based upon an abuse of process that would render the committal hearing unfair. She seeks that relief under the residual ground. As Sharpe J.A. wrote at para. 32:
The residual power to stay proceedings that do not produce procedural unfairness is not focused on protecting the rights of the individual litigant. Rather, it 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”: R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659 (S.C.C.), at p. 1667. As Lamer J. stated in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903 (S.C.C.), at p. 942:
The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court's disapproval of the state's conduct. The issuance of the stay obviously benefits the accused but the Court is primarily concerned with a larger issue: the maintenance of public confidence in the legal and judicial process. In this way, the benefit to the accused is really a derivative one.
217However, in my view, none of those factors are in play here. There is no conduct that calls for a stay of the prosecution of the Applicant to manifest the court's disapproval of the state's conduct. There is no nexus between the alleged state misconduct and the committal hearing.
218The worst that can be said to have occurred here is that Ms. Elofer was held in a detention centre for 10 days until she was granted bail. I do not suggest that was a pleasant experience for her and I accept that she was frightened during that period of time because of a whacky and allegedly anti-semitic cellmate, as she states in her affidavit. Respectfully, however, that is simply not a fact that can in any way compare to the state misconducts described in the preceding cases, and in my view, the residual power cannot apply here.
219The Applicant has not demonstrated any procedural unfairness, but neither is this a case where the court's integrity and the public's confidence in the legal process in the face of improper state conduct must be vindicated. I am unable to find that the conduct of state officers in this case calls for the prosecution to be stayed “because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court.”
220I have found that there were no actionable Charter breaches that have the air of reality that could support a claim of abuse of process, and in any event, the alleged state misconduct here does not have any connection to the test for committal in s. 29 of the Act.
221Accordingly, I find that the Applicant has failed to establish the required nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself. Accordingly, the application for a stay of proceedings based on abuse of process is dismissed.
Conclusion
222To summarize, in the result, the Applicant’s requests for extraordinary disclosure will be dismissed. Given my conclusions that there is no air of reality to support either of the extended disclosure requests, the Applicant’s request to cross-examine the officers in this case will also be dismissed.
223The Applicant claims that alleged Charter breaches relating to issuance of the warrant by the B.C. Supreme Court, taken together with alleged breaches arising out of her arrest in Toronto on May 2, 2022, constitute an abuse of process that requires that these extradition proceedings be stayed.
224As these reasons show, I have found no Charter breach relating to the issuance of the warrant. I have found no Charter breach relating Ms. Elofer’s arrest. I have found no factual or legal basis to permit cross-examination of the police officers in this case, whether in British Columbia or Ontario.
225The Notice of Application shows that the Applicant has argued her stay of proceedings application on the same basis as her applications for disclosure and leave to cross-examine, and for this reason, the Attorney General requests that I now dismiss the application for a stay of proceedings on the merits.
226I have found that there is no air of reality to the Applicant’s claim, factually or legally. I have also found that the Applicant has not established the required “nexus” to support a stay of these extradition proceedings, based upon abuse of process. As such, the Applicant’s overriding claim for a stay of proceedings in this matter must necessarily be dismissed.
Michael G. Quigley J.
Released: April 21, 2023
COURT FILE NO.: CR-22-90000047-00MO
DATE: 20230423
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL FOR CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Requesting State/Respondent
- and –
SABRINA ELOFER
aka SABRINA SARA; MILA MORALES
Person Sought/Applicant
REASONS FOR DECISION
Michael G. Quigley J.
Released: April 23, 2023
Footnotes
- Being Part I of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11.
- An Interpol Red Notice will be issued by Interpol for worldwide distribution in response to the verified request of a member country seeking the location and arrest of persons wanted for prosecution or to serve a sentence.