Court File and Parties

COURT FILE NO.: CR-22-0590MO DATE: 2023 05 12 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an Application pursuant to section 29 of the Extradition Act, S.C. 1999, c. 18 for an order committing JAYANT BHATIA into custody to await the Minister’s decision on whether he should be surrendered to the United States of America; and

IN THE MATTER OF an Application by the Person Sought seeking disclosure; and

IN THE MATTER OF an application seeking summary dismissal of the Person Sought’s Application for disclosure per Rule 6.11(2) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario)

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant/Requesting State – and – JAYANT BHATIA Respondent/Person Sought for Extradition

Counsel: A. Rice, for Attorney General Canada S. Goldstein, for the Respondent/Person Sought for Extradition

HEARD: May 10, 2023

REASONS FOR JUDGMENT

MILLER J.

[1] The Attorney General of Canada brings an Application pursuant to s. 29 of the Extradition Act, S.C. 1999, c. 18 on behalf of the United States of America seeking an order committing the Respondent Jayant Bhatia into custody to await the Minister’s decision on whether he should be surrendered to the United States of America pursuant to an extradition request.

[2] The Respondent Jayant Bhatia brought an application for disclosure. The Applicant for Attorney General Canada applied to have this Court summarily dismiss the disclosure application.

[3] The application to summarily dismiss the disclosure application was granted and I ordered the committal of Jayant Bhatia into custody to await surrender to the United States of America. I made those decisions on the date of the hearing, May 10, 2023 with written reasons to follow. These are those reasons.

The Basis for the Application for Extradition

[4] The Minister of Justice of Canada authorized the Attorney General of Canada to proceed before the Superior Court of Justice to seek an order for the committal of Jayant Bhatia who is sought for prosecution by the United States of America by way of an Authority to Proceed dated March 9, 2023 (“ATP”) pursuant to s. 15 of the Extradition Act. The Canadian offence corresponding to the conduct for which the United States seeks the extradition of Jayant Bhatia is Fraud contrary to section 380 (1) of the Criminal Code.

[5] The Applicant for Attorney General Canada relies on a Certified Record of the Case for Prosecution dated February 2, 2023 (“ROC”) to support the Application for Extradition of Mr. Bhatia.

[6] The Applicant for Attorney General Canada takes the position that there is some evidence available for trial on every essential element of the parallel Canadian offence upon which a jury properly instructed could convict and submits that the test for committal is therefore satisfied in relation to the offence set out in the ATP.

[7] The Respondent Jayant Bhatia submits that the main issue on extradition committal is identification and that the evidence on this issue relied on in the ROC is manifestly unreliable.

The Evidentiary Basis for Committal

[8] The Applicant for Attorney General Canada relies on a Certified Record of the Case for Prosecution dated February 2, 2023 (“ROC”) to support the Application for Extradition of Mr. Bhatia. In compliance with paragraph 33(1)(a) of the Extradition Act, the ROC summarizes the evidence available to the U.S. for use in Jayant Bhatia’s prosecution. The certification confirms that the evidence summarized in the ROC is available for trial and sufficient under the laws of the U.S. to justify prosecution.

[9] In summary, the ROC indicates that some 20,000 persons in the United States and Canada were defrauded by a scheme in which elderly persons were targeted, their personal computers subjected to a “freeze” followed by an internet “pop-up” offering to “fix” the problem for a fee. The persons responsible for the “freeze” were also the persons offering to “fix” the problem for a fee. The victims paid sums amounting to approximately $10 million USD over the course of the scheme. It is alleged that a person named Gagan Lamba based in India worked with Jayant Bhatia who was based in Canada and another individual based in the United States to perpetrate the scheme.

[10] Examples of the alleged victims’ anticipated testimony is described in the ROC along with expected testimony from a cooperating witness (CW-1), who worked with Mr. Bhatia and Mr. Lamba in the tech support companies purportedly repairing the victims’ computers.

[11] In addition, the ROC contains the anticipated testimony of FBI/USPIS agents and computer scientists, who analysed:

• lawfully obtained records from Google accounts belonging to Jayant Bhatia and Gagan Lamba, which established their collaboration within the scheme;
• lawfully obtained records for tech support corporations, such as Webleaders LLC which CW-1 identified as Mr. Bhatia’s business, showing that they were created solely to perpetrate the scheme;
• lawfully obtained American banking records for accounts into which funds from the purported victims were deposited and from which transfers to accounts held by Jayant Bhatia and Gagan Lamba were made; and,
• the alleged victims’ computers, which contained traces corroborating the victims’ description of their interactions with members of the Tech Support Scheme.

[12] The banking records show that between December 1, 2019 and April 30, 2020 $11,000 USD were transferred from Webmasters LLC to Jayant Bhatia’s TD Account, and on November 24, 2020 $20,000 USD were transferred to Jayant Bhatia, under the business name A2Z Consultants.

[13] Investigators connected Jayant Bhatia to the Bhatia TD Account and to A2Z Consultants (“A2Z”) via records found in a Google account, which lists Jayant Bhatia as the subscriber (the “Bhatia Google Account”). The Bhatia Google Account also contained an image of Jayant Bhatia on a Canadian permanent resident card that matched a person depicted in other photographs contained within the account. The image of Jayant Bhatia from the permanent resident card is attached as Exhibit A to the ROC.

[14] Within the Bhatia Google Account, investigators also located: numerous emails from TD bank addressed to Jayant Bhatia and identifying him as the account holder; Canadian business incorporation records showing that Jayant Bhatia created and incorporated A2Z, with him as manager, around January 2020; and incorporation paperwork showing that Jayant Bhatia had also registered A2Z Consultants Group as a business in India around October 2017.

[15] The ROC indicates that CW-1 is cooperating with the investigation and is expected to testify as follows about her relationship with Gagan Lamba and Jayant Bhatia within the scheme:

• She met Gagan Lamba in India in 2012, when he was operating a business called PCSupport and Care via a call centre. According to their discussion, Mr. Lamba orchestrated the appearance of pop-up messages on persons’ computers instructing them to contact his company by telephone if they were experiencing computer problems.
• CW-1 began working with Lamba. At his direction, she created a company called “Geek Support” and was responsible for its finances while Lamba took care of the “technical work.” CW-1 recalls customers claiming they had been defrauded, which complaints she sent to Lamba. In 2014 or 2015, CW-1 registered a company called “Quick Fix Computer Services LLC” and then closed “Geek Support” as Lamba directed. According to CW-1, she received complaints of fraud concerning this company too, which she also sent to Lamba.
• About two years later, in India, CW-1 met Jayant Bhatia through Lamba. She learned that Bhatia owned a company called A2Z Consultants, which she believed was a computer/web service business. CW-1 and Mr. Bhatia discussed potential tech support businesses and, in 2018, she began working with him on a business called Webleaders Inc. that was like Lamba’s business. CW-1’s role was also similar to her role in Lamba’s business. For example, she received money from Webleaders customers that she deposited into American bank accounts held by the company. In some instances, CW-1 would send Mr. Bhatia photographs of customers’ paper cheques, which were delivered to her perfume business in New Jersey, so that Bhatia could make mobile deposits. CW-1 would then wire the money to Jayant Bhatia’s bank accounts in Canada or India. CW-1 performed these tasks at Mr. Bhatia’s direction.
• Based on her conversations with them, CW-1 knew that Jayant Bhatia and Gagan Lamba were working together with respect to the tech support companies.
• Investigators discovered a record of a Canadian permanent resident card issued to Jayant Bhatia and bearing his photograph within the Bhatia Google Account. The photograph is attached to the ROC as Exhibit A. CW-1 reviewed Exhibit A and identified the individual depicted in the photograph as Jayant Bhatia. She is expected to testify that she can identify Bhatia’s image because she met him many times.

[16] There is other evidence corroborating CW-1’s account. For example, bank account records establish that cheques from alleged victims of the scheme were deposited into accounts held by CW-1 under the name Webleaders Inc.

[17] There is other evidence connecting Gagan Lamba and Jayant Bhatia. Investigators discovered Google Chats between Lamba, Bhatia and another member of the scheme in which they discussed the operation of the call centers, including payroll, attendance, and hiring.

[18] Investigators discovered email communications between Lamba’s Google Account and Mr. Bhatia’s Google Account, such as,

• a May 8, 2021 email from Bhatia to Lamba with the subject line “PW’s.” The body of the email listed username and password information for American bank accounts in the names of Webfixers, Webleaders, A2Z, and Quickfix, which had been used to deposit alleged victims’ funds;
• a May 19, 2021 email from Bhatia to Lamba with the subject line “Login.” The body of the email listed usernames and passwords for third-party accounts, like an account with Ringba, which is a call tracking and analytics company. CW-1 is expected to testify that she paid Ringba for services supplied to Lamba’s business;
• an August 4, 2020 email from Lamba to Bhatia with the subject line “Logmein Details.” The Tech Support Scheme employed remote desktop applications provided by a Virginia-based company Logmein. The body of the email listed username and password information for a Logmein account with the username “krsingh@webmastersllc.net.” PI Davila lawfully obtained records for this account at Logmein. The records showed more than 20,000 individual remote access sessions between April 2020 and late 2022. The records included victim IP addresses accessed by the call center employees as well as a victim “nickname” inputted by the call center employee, which was often the victim’s full name. Among the records of accesses were those linked to alleged victims which were contemporaneous to the times the victims wrote their cheques;
• a June 25, 2019 email from CW-1 attaching images of victims’ cheques that Lamba forwarded to Bhatia. The cheques, which ranged from USD 100 to 499.99, were made out to “Quick Fix Computer Services”;
• a May 16, 2020 email with the subject line “WF Docusign” that Bhatia sent to Lamba attaching service agreements between Webfixers and alleged victims of the Tech Support Scheme.
• a September 30, 2020 email Lamba sent Bhatia with the subject line “Quickfixnj Godaddy.” The body of the email provided username and login information for a GoDaddy account associated with Quick Fix

[19] The Bhatia Google Account also contained excel spreadsheets for Webleaders, A2Z, and Webfixers; call center employees’ salary information, attendance and lead requests, and bank accounts held in the company names Webleaders, A2Z, and Webfixers. Also found in the Bhatia Google Account were business agreements for Webleaders, Webstylers, Web Micro Solutions, and Weblinkers, the entities used to perpetrate the scheme.

The Application for Disclosure

[20] The parties agree that that a person seeking to oppose his extradition has a right to ask for further disclosure. United States of America v. Kwok, [2001] 1 S.C.R. 532.

[21] The Respondent Jayant Bhatia brings an application requesting the disclosure of a criminal record and plea agreement for the person identified in the ROC as Cooperating Witness 1 (“CW-1”) to make the argument at the Applicant’s extradition hearing that CW-1’s evidence on identification be excluded on the basis that it is manifestly unreliable.

[22] Counsel for Mr. Bhatia submits and the Applicant for Attorney General Canada agrees that there is evidence upon which a reasonable inference can be drawn that CW-1 is Meghna Kumar, who was charged with one count of wire-fraud having transferred victim money from her Web Leaders Inc. corporate bank account to a bank account linked to Gagan Lamba.

[23] A press release dated December 16, 2022 from the U.S. Attorney’s Office, District of New Jersey, identifies Jayant Bhatia as one of several individuals charged in a “Multimillion-Dollar Transnational Tech Support Scam”. The same press release indicates that Meghna Kumar pleaded guilty December 14, 2022 based on her role in the scheme. An In-Print Indian magazine article dated April 26, 2023 indicated that Meghna Kumar had previously been arrested in the U.S.

[24] Mr. Bhatia relies on United States v. Ferras 2006 SCC 33 in support of his position that an extradition judge may engage in a limited weighing of the evidence to exclude evidence that is manifestly unreliable. At paragraph 47 of that decision the Supreme Court of Canada indicated:

Section 29(1)'s direction to an extradition judge to determine whether there is admissible evidence that would "justify committal" requires a judge to assess whether admissible evidence shows the justice or rightness in committing a person for extradition. It is not enough for evidence to merely exist on each element of the crime. The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. If the evidence is incapable of demonstrating this sufficiency for committal, then it cannot "justify committal". The evidence need not convince an extradition judge that a person sought is guilty of the alleged crimes. That assessment remains for the trial court in the foreign state. However, it must establish a case that could go to trial in Canada. This may require the extradition judge to engage in limited weighing of the evidence to determine, not ultimate guilt, but sufficiency of evidence for committal to trial.

[25] Mr. Bhatia submits that the requested disclosure is necessary to make the argument that the identification of Jayant Bhatia by CW-1 as one of the people implicated in the fraud is manifestly unreliable.

[26] The Applicant for Attorney General Canada applies to have the disclosure application summarily dismissed.

[27] The Applicant for Attorney General Canada submits that Mr. Bhatia’s application for disclosure does not show a substantial ground for the disclosure order sought. They submit that the ground upon which Mr. Bhatia relies is contrary to settled case law. Moreover, the certified record of the case contains sufficient evidence apart from CW-1’s anticipated testimony that establishes identification sufficient for the purpose of committal. The Applicant for Attorney General Canada submits that Mr. Bhatia’s application for disclosure is manifestly frivolous and can be determined without a full hearing.

[28] In R. v. Haevischer, 2023 SCC 11 the Supreme Court of Canada established that, in the context of criminal trials where guilt or innocence is at stake, the appropriate standard for summary dismissal is whether the underlying application is manifestly frivolous.

[29] As noted at paragraph 85 of Haevischer, “applications that depend on legal propositions that are clearly at odds with settled and unchallenged law are manifestly frivolous.” And at paragraph 86, “An application may also be manifestly frivolous where the remedy sought could never issue on the facts of the particular application.”

[30] The Applicant for Attorney General Canada submits that both situations apply in respect to Mr. Bhatia’s application for disclosure.

[31] In cases where the person sought alleges that the evidence contained in the record of the case is manifestly unreliable, they must demonstrate that there is an “air of reality” that the requested information is likely to rebut the presumptive reliability of the certified record. The Applicant for Attorney General Canada cites the following cases in support of this principle: United States of America v. Orphanou, 2010 ONSC 1701 at paras 20-23; United States of America v. Norbu, 2020 ONSC 5389 at paras 29, 31; United States of America v. Rosenau, 2010 BCCA 461, paras 55-64. Counsel for Mr. Bhatia does not dispute that this is the applicable law.

[32] The presumptive reliability of the certified record has been recognized in many cases including Ferras at paras 52, 66, 69. As noted at paragraph 72 of M.M. v. United States of America, 2015 SCC 62, where the Supreme Court cited the Ontario Court of Appeal in United States of America v. Anderson, 2007 ONCA 84 at paragraph 31: This presumption may only be rebutted by evidence showing “fundamental inadequacies or frailties in the material relied on by the requesting state”.

[33] The Applicant for Attorney General Canada submits that it is settled law that a witness’ cooperation with the prosecution in exchange for a favourable bargain or a witness’ criminal record are not adequate factors to justify the rejection of the witness’ evidence. In the absence of any other reason that would undermine the threshold reliability of CW-1’s evidence, the requested plea agreement and criminal record are inadequate to the task of demonstrating that CW-1’s identification evidence is manifestly unreliable.

[34] In United States v. Rosenau, 2010 BCCA 461 the person sought requested disclosure of the plea agreement, statements to the foreign authorities, the indictment and criminal record of his accomplice. At paragraph 63, the British Columbia Court of Appeal indicated that the person sought was:

…effectively asking for the opportunity to discover if there is a “reasonable possibility” that evidence that could undermine the reliability [the witness’] evidence exists, without having to demonstrate, from the record or by adducing evidence, that it is manifestly unreliable. This request amounts to no more than a fishing expedition for evidence from which the appellant may try to mount an attack on [the witness’] credibility. While such an approach to [the witness’] evidence may be appropriate if not essential at trial, in my view it exceeds the focus of an extradition hearing which is limited to determining threshold reliability of evidence as a requirement of s. 29(1) of the Act.

[35] I am satisfied that Mr. Bhatia’s application for disclosure must fail on the basis that settled law establishes that a witness’ cooperation with the prosecution in exchange for a favourable bargain or a witness’ criminal record are not adequate factors to justify the rejection of the witness’ evidence. The disclosure sought is therefore not capable of demonstrating that CW-1’s identification of Jayant Bhatia as a person involved with the alleged Fraud is manifestly unreliable.

[36] Further, I am satisfied that the ROC contains sufficient evidence independent of CW-1’s anticipated testimony to satisfy the test for committal in relation to Jayant Bhatia’s identity as the person sought by the U.S.A. in this matter and as the person involved in the commission of the alleged Fraud.

[37] The ROC describes documentation bearing Jayant Bhatia’s name and his likeness found in an email account, which lists him as the subscriber and whose other contents establish his links to the alleged fraud (See the Evidentiary Basis for Committal above). The documents include a Canadian permanent resident card bearing the name of Jayant Bhatia and his photograph. Other photographs in the Bhatia Google account show the person sought in more casual settings with other people. Other documents in the Bhatia Google account include and correspondence addressed to “Jayant Bhatia” from TD Bank. I conclude that the requested disclosure is incapable of undermining their evidentiary value for the purpose of committal.

[38] I am satisfied that Mr. Bhatia’s application for disclosure cannot succeed in view of settled law. I am also satisfied that the application for disclosure cannot succeed on the basis that the totality of evidence, even to the exclusion of CW-1’s identification of Mr. Bhatia, is sufficient to meet the evidentiary threshold of identification on the issue of committal. I find that the application for disclosure therefore meets the Haevischer test of being manifestly frivolous.

[39] The Applicant for Attorney General Canada does not concede, however, that the “manifestly frivolous” standard should apply to an application of this nature in the context of an extradition hearing. Referencing M.M., supra, they submit that that extradition proceedings are not trials and that a person sought’s guilt or innocence is not at issue. They submit that the values of fairness and efficiency, which drove the Supreme Court’s analysis in Haevischer, must be viewed in the context of the limited screening function committal hearings serve. They submit that the fundamental concept that the actual trial takes place in the requesting state must inform this Court’s assessment of what constitutes a fair extradition hearing.

[40] The Applicant for Attorney General Canada further submits that efficiency must be interpreted to acknowledge the importance of meeting Canada’s international obligations promptly. See also Ferras, at paragraphs 14-15. The importance of efficiency generally recognized in extradition cases, is of particular note in this case where the targeted victims were elderly. Any delay may impact in a significant way the availability of evidence to prosecute Mr. Bhatia and the ability of the victims in this case to see justice done.

[41] While this argument is a compelling one, it is not necessary for me to decide it as I have found that Mr. Bhatia’s application for disclosure meets the Haevischer test of being manifestly frivolous. The question of whether there should be a different threshold for summary dismissal of applications in extradition cases may be left for another day.

[42] The application for summary dismissal of Mr. Bhatia’s disclosure application is granted. The application for disclosure is dismissed.

The Extradition Hearing

[43] The extradition hearing proceeded following my decision dismissing the application for disclosure. Counsel for Mr. Bhatia relied largely on his submissions made in support of the application for disclosure. These submissions focussed only on the evidence identifying Mr. Bhatia as the person involved in the commission of the alleged offence. Counsel for Mr. Bhatia did not suggest, in either written or oral argument that there was insufficient evidence on the essential elements of the offence of Fraud, or that someone using the name Jayant Bhatia was not involved in the commission of that crime.

[44] Counsel for Mr. Bhatia submits that the identification evidence is entirely circumstantial and, in accordance with R. v. Munoz, 2006, 86 O.R. (3d) 134 (S.C.J.), speculative on the issue of identification. Counsel for Mr. Bhatia submits that the Applicant for Attorney General Canada has not met their evidentiary onus on the issue of identification.

[45] It is well established that the test for committal on an extradition hearing is the same as that for committal for trial on a preliminary hearing. M.M. at paragraph 37.

[46] Ducharme J. in Munoz, in granting a certiorari application challenging committal for trial at a preliminary hearing, indicated at paragraph 22 that:

Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence – the accused must be discharged as there would be an absence of evidence on an essential element.

[47] Counsel for Mr. Bhatia submits that the evidence of CW-1 identifying his client as a person involved in the perpetration of the alleged Fraud is manifestly unreliable. He urges the Court to make this finding based on the evidence before the Court that Meghna Kumar has entered a plea of guilty with respect to her part in the Fraud.

[48] The Applicant for Attorney General Canada concedes that on the evidence before the Court a reasonable inference may be drawn that Meghna Kumar is CW-1 as identified in the ROC. The Applicant for Attorney General Canada submits however that the evidence that Meghna Kumar pleaded guilty to her part in the alleged Fraud is insufficient to displace the presumptive reliability of the evidence in the ROC that CW-1 identified Jayant Bhatia as a person involved in the perpetration of the alleged Fraud. According to the ROC CW-1 is expected to testify that she met Jayant Bhatia several times and was able to identify him as a person involved in the perpetration of the alleged Fraud due to her own interactions with him and recognizing him in the photograph attached to Jayant Bhatia’s Canadian permanent resident card.

[49] I do not accept Mr. Bhatia’s argument that the identification of him by CW-1 is manifestly unreliable. I find that it meets the threshold reliability required to establish the essential element of identity in this case.

[50] As noted above, I am also satisfied that that the ROC contains sufficient evidence independent of CW-1’s anticipated testimony to satisfy the test for committal in relation to Jayant Bhatia’s identity as the person sought by the U.S.A. in this matter and as the person involved in the commission of the alleged Fraud.

[51] The ROC describes documentation bearing Jayant Bhatia’s name and his likeness found in an email account, which lists him as the subscriber and whose other contents establish his links to the alleged fraud. (See the Evidentiary Basis for Committal above) The documents include a Canadian permanent resident card bearing the name of Jayant Bhatia and his photograph. Other photographs in the Bhatia Google account show the person sought in more casual settings with other people. Other documents in the Bhatia Google account include and correspondence addressed to “Jayant Bhatia” from TD Bank.

[52] Counsel for Mr. Bhatia submits that the conclusion that his client is the person to whom the Google account and TD bank account was registered is speculative.

[53] I agree that the evidence, other than the direct identification by CW-1, identifying Jayant Bhatia as a person involved in the perpetration of the alleged Fraud is circumstantial, and that the trier of fact determining ultimate reliability must consider all other reasonable inferences before being satisfied that the circumstantial identification evidence establishes Jayant Bhatia’s guilt.

[54] While I consider that it is possible that some other person used Mr. Bhatia’s name, and somehow acquired his family photographs and Canadian permanent resident card, I do not find that this possibility renders the circumstantial evidence from which a reasonable inference can be drawn that Jayant Bhatia is the person involved in the perpetration of the alleged Fraud, manifestly unreliable. I conclude that there is evidence on the issue of identity upon which a jury properly instructed could convict.

[55] I am satisfied that the Applicant for Attorney General Canada has met the evidentiary onus of demonstrating that there is evidence available for trial in the case against Jayant Bhatia that possesses indicia of threshold reliability on each essential element of the Canadian offence of Fraud contrary to section 380 (1) of the Criminal Code, including identification of Jayant Bhatia as the person involved in the commission of the alleged crime, upon which a reasonable jury properly instructed could convict.

[56] I ordered the committal of Jayant Bhatia into custody to await surrender to the United States of America. In accordance with subsection 38(2) of the Extradition Act, I informed Jayant Bhatia that he will not be surrendered until after the expiry of 30 days and that he has a right to appeal the order of committal and to apply for judicial interim release.

MILLER J. Released: May 12, 2023