



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Viscomi, 2014 ONCA 879

DATE: 20141205

DOCKET: M44414 (C57211)

Laskin J.A. (In Chambers)

IN THE MATTER OF an appeal of a committal order pursuant to
    s. 49 of the
Extradition Act
, S.C. 1999, c. 18

AND IN THE MATTER OF an application for judicial review
    pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada (on behalf of the
    United States of America)

Respondent

and

Marco Viscomi

Applicant

Edward Greenspan and Brad Greenshields, for the
    applicant

Richard Kramer, for the respondent

Heard: November 13, 2014

On application for judicial interim release pending the appeal
    from the committal order of Justice Kenneth L. Campbell of the Superior Court
    of Justice, dated May 24, 2013, with reasons reported at 2013 ONSC 2829, 115
    O.R. (3d) 606, and the application for judicial review of the surrender order
    of the Minister of Justice, dated October 17, 2013.

Laskin J.A.:


[1]

Marco Viscomi applies for bail pending his appeal of the order
    committing him for extradition to the United States, and his application for
    judicial review of the Ministers surrender order. The Attorney General of
    Canada opposes the application for bail.

A.

Background

[2]

The United States has alleged that Viscomi, using manipulation,
    extortion and threats of violence, coerced two sisters, aged 13 and 17 and
    living in Virginia, into performing sadistic sexual acts with each other in
    front of a webcam while he watched and captured images on his computer for his
    pleasure. The webcam session took place over Skype
[1]
in the middle of the night of January 5-6, 2012, and lasted about an hour and
    ten minutes.

[3]

Viscomi was arrested under the
Extradition Act
on August 9,
    2012. He applied for bail pending his committal hearing. On August 16, Benotto
    J. denied bail. Although she recognized that Viscomi had the loving and devoted
    support of his parents, she concluded that there was a substantial likelihood
    he would reoffend and that the protection of the public required his detention.
    Viscomi has been in custody continuously since Benotto J.s order.

[4]

The dates of the committal and surrender orders are as follows:

·

May 24, 2013: K.L. Campbell J. orders Viscomis committal for
    extradition.

·

October 17, 2013: The Minister orders Viscomis surrender.

·

November 12, 2014: The Minister refuses to reconsider his
    surrender order.

[5]

In the United States, Viscomi will face charges relating to child
    pornography and child luring, and, if convicted, mandatory sentences of up to
    30 years in jail.

[6]

The appeal and judicial review materials are all available. Thus the
    hearing before this court can and should be held no later than early spring
    2015.

B.

The Application

[7]

This application is brought under s. 20 of the
Extradition Act
.
    Section 20 states that the bail pending appeal provision of s. 679 of the
Criminal
    Code
, with any modifications the circumstances may require, applies to judicial
    interim release pending appeal of a committal order and judicial review of a
    surrender order. Viscomi must therefore satisfy three criteria. He must show:

·

His appeal is not frivolous;

·

He is not a flight risk; and

·

His detention is not necessary in the public interest.

[8]

The main criterion that is modified in the extradition context is the
    public interest criterion.

[9]

Viscomi submits that he has met all three criteria for bail and should
    be released on the stringent release plan put before me. The Attorney General
    of Canada submits that Viscomi has met none of the criteria.

[10]

In
    considering this application, I accept two preliminary points Viscomis counsel
    made. One, this is a new bail hearing under s. 20 of the
Extradition Act
.
    Thus, the order of Benotto J., made under s. 18(1)(b), is not entitled to any
    deference. Two, whether entitled to or not, I do not rely on the evidence of Daryl
    Hawke, a civilian member of the Ontario Provincial Police. Hawke testified at
    the bail hearing before Benotto J. and described his examination of the
    computer equipment seized following Viscomis arrest on Canadian charges.
[2]


[11]

On
    this application, for reasons I will elaborate on, I conclude:

·

Viscomi has not raised any arguable ground of appeal from his
    committal order;

·

Viscomi is not a flight risk; and

·

The public interest, standing alone, does not require Viscomis
    detention.

[12]

Because
    I have found no arguable ground of appeal, I dismiss Viscomis application for
    bail. I do so without prejudice to its renewal, should he be able to put
    forward an arguable ground of appeal or judicial review.

(a)

No arguable ground of
    appeal

[13]

An
    appeal is not frivolous if it raises an arguable issue or ground of appeal. This
    is a low bar. Nonetheless, on the material before me, I am not persuaded that
    Viscomi has met this criterion.

[14]

He
    has put forward two main grounds of appeal challenging the correctness of the
    committal order (he has not put forward any submissions on the Ministers
    surrender order). First, the extradition judge erred in ordering Viscomis
    committal because the evidence was not reasonably capable of supporting a
    finding of guilt. Second, the police obtained Viscomis subscriber information
    from his internet service provider without a warrant, and in the light of the
    Supreme Court of Canadas decision in
R. v. Spencer
[3]
 decided after these committal proceedings  this likely constitutes a breach
    of s. 8 of the
Canadian Charter of Rights and Freedoms
. And arguably,
    the evidence the police obtained from the internet service provider will be
    excluded under s. 24(2) of the
Charter
. I reject both grounds.

(i)

The evidence on the committal order was sufficient

[15]

This
    ground of appeal comes down to two questions: Did the extradition judge apply
    the right test? And, if so, was there evidence to support his committal order?
    I answer yes to both questions.

[16]

The
    extradition judge considered the Supreme Court of Canadas decisions in
United
    States of America v. Ferras
,
[4]

R. v. Arcuri
[5]
and
R. v. Sazant
,
[6]
which respectively set out the general test for committal, the test to be
    applied when there is, as in this case, circumstantial evidence, and the
    impropriety of weighing competing inferences at the committal stage. The
    extradition judge expressly applied the decision of this court in
United
    States of America v. Leonard
,
[7]
where, at para. 31, Sharpe J.A. set out the appropriate test:

The extradition judge applied the correct test for committal:
    was there available and reliable evidence upon which a reasonable jury,
    properly instructed, could convict a sought person for the corresponding
    Canadian offence listed in the Authorization to Proceed. Where, as in this
    case, the evidence is circumstantial in nature, an extradition judge must weigh
    the evidence, in the sense of assessing whether it is reasonably capable of
    supporting the inferences the trier of fact will be asked to make. If the
    inferences required are within the field of inferences available on the whole
    of the evidence, nothing else matters. [Citations omitted.]

[17]

Applying
    this test, the extradition judge concluded, at para. 17, that the evidence in
    the certified record of the case permits the reasonable inference to be drawn
    that the respondent was the perpetrator of the offence.

[18]

Viscomi
    accepts that a crime was committed. But he contends that the evidence
    identifying him as the perpetrator is insufficient to justify his committal to
    stand trial in the United States. I do not accept that his contention is even
    arguable.

[19]

The
    proposed evidence in the Record of the Case supporting the trial judges
    conclusion is as follows:

·

The Virginia Beach Police Department has the chat session log and
    the computer belonging to one of the teenaged sisters. These items show that
    the individual communicating with the two sisters during the time of the
    alleged offence had a Skype screen name of Jamie Paisley and the account name
    jimbos939393.

·

The offences are alleged to have been committed on January 5-6,
    2012.

·

Skype records show that the IP address associated with the screen
    name Jamie Paisley and the account name jimbos939393 for the period December
    28, 2011, to January 20, 2012, was 24.138.105.47.

·

Zing Networks, a residential internet service provider in
    Ontario, maintained the IP address 24.138.105.47 in December 2011 and January
    2012

·

The subscriber assigned to IP address 24.138.105.47 between
    December 6, 2011, and January 20, 2012, was Marco Viscomi, of a specific
    residential address in Ontario.

·

Viscomis Ontario drivers licence shows the same residential
    address as that associated with the IP address.

[20]

On
    this evidence, all of which was reliable and admissible, one can reasonably
    draw the inference that Viscomi was the perpetrator of the offences. As the
    extradition judge acknowledged, it is possible someone else had access to this
    IP address and could have committed the offences.
[8]
But the task of the extradition judge is not to weigh competing inferences. The
    extradition judges task is simply to determine whether one reasonable
    inference is that the accused committed the offence. The extradition judge in
    this case determined that from the evidence in the Record of the Case, it was
    reasonable to draw the inference that Viscomi committed these offences. Although
    Viscomi argued that independent confirmatory evidence was required, I do not
    think it was to draw the inference that he was the perpetrator.

(ii)

The subscriber information the police seized would be admissible under
    s. 24(2) of the
Charter

[21]

Zing
    received a police request for the name and address of the account holder
    associated with the IP address 24.138.105.47, used between December 6, 2011,
    and January 20, 2012. Under Zings wireless service internet agreement signed
    by all of its customers, Zings customers agree not to disseminate content that
    is unlawful, threatening, or abusive, or that constitutes a criminal offence.
    Zings customers also agree Zing has the right to disclose any information
    needed to satisfy any government request. In accordance with its agreement,
    Zing voluntarily disclosed to the police the name and residential address of
    the subscriber assigned to IP address 24.138.105.47 at the relevant time. The
    decision of this court in
R. v. Ward
,
[9]
the prevailing authority at the time, allowed police to obtain this information
    from Zing without a warrant.

[22]

This
    year, however, in
Spencer
, the Supreme Court of Canada decided that
    when police obtain subscriber information from an internet service provider,
    they are conducting a search. And if they do so without a warrant, then absent
    exigent circumstances, the search amounts to a breach of s. 8 of the
Charter
.

[23]

For
    the purpose of this application I accept that Viscomi can rely on
Spencer
.
    I therefore accept that when the police obtained from Zing the name and
    residential address of the subscriber with the IP address 24.138.105.47, they
    breached Viscomis s. 8
Charter
rights. However, that breach does not
    justify granting bail because it must be considered in conjunction with s.
    24(2) of the
Charter
. And, as in
Spencer
, I cannot see any
    basis for the exclusion under s. 24(2) of the subscriber information the police
    obtained. As in
Spencer
:

·

The police were acting in good faith under the law in effect at
    the time, which said that police requests of this kind did not require a
    warrant.

·

The police conduct would not tend to bring the administration of
    justice into disrepute.

·

Although the impact on Viscomis
Charter
-protected
    rights was serious, the offences too are serious.

·

The evidence is reliable and, without it, the prosecution will
    have no case.

[24]

Viscomi
    argues, however, that the s. 24(2) analysis in this case differs from that in
Spencer
because the unconstitutionally obtained subscriber information led to
Criminal
    Code
search warrants, which were used to seize computers and hard drives
    that were then improperly sent to the United States under the M
utual Legal Assistance
    in Criminal Matters Act
[10]

(
MLACMA
). Viscomi has challenged these
MLACMA
proceedings, unsuccessfully to date. Even if his challenge has merit, however,
    it has no bearing on the committal proceedings because the fruits of the search
    (the computers and hard drives) were not incorporated into the Record of the Case.
    On the basis of this courts decision in
United States of America. v.
    McAmmond
,
[11]
the proceedings under
MLACMA
are irrelevant.

[25]

For
    these reasons I see no arguable ground of appeal from the committal order.

(b)

Viscomi is not a
    flight risk

[26]

Although
    suggesting Viscomi was a flight risk, the Attorney General of Canada did not
    press this point. I do not consider Viscomi to be a flight risk. He has no
    criminal record and no history of flight. The police seized his passport during
    the execution of the
Criminal Code
search warrants. Although Viscomi
    is pursuing medical studies in Australia, these studies have been put on hold
    pending the disposition of the extradition proceedings. His proposed release
    plan stipulates that he will remain in Ontario and not apply for a passport or
    other travel documents. Thus, Viscomi has met this criterion.

(c)

The public interest alone does not
    justify Viscomis continued detention

[27]

Two
    chambers decisions of this court bear on the public interest criterion in
    extradition proceedings: the decision of Simmons J.A. in
Canada (Attorney
    General) v. Raghoonanan
[12]

and the decision of Doherty J.A. in
France v. Ouzghar
.
[13]

[28]

In
Raghoonanan
, Simmons J.A. noted, at paras. 34-35, that the public
    interest in detaining an applicant is less compelling in the case of an appeal
    of a committal order under the
Extradition Act
than in the case of an
    appeal from a conviction under the
Criminal Code
. In the extradition
    context, the applicant has not been convicted of anything and is presumed
    innocent. In the
Criminal Code
context, the applicant has been
    convicted and the court must balance the reviewability and enforcement of the
    conviction.

[29]

In
Ouzghar
, Doherty J.A. said that in extradition proceedings, the only
    reason Canada has any cause to place an applicant in custody is to facilitate
    the applicants surrender to a foreign country. That surrender, of course, will
    not occur at least until this court has disposed of the applicants appeal and
    judicial review application. Thus to quote Doherty J.A., at para. 12:

Absent some substantive cause specific to the applicant to
    justify detention, the public interest considered in the context of an
    extradition proceeding is not served by incarceration that does not facilitate
    the applicants surrender to the requesting country.

[30]

Here,
    the substantive public interest concerns the Attorney General of Canada puts
    forward to justify Viscomis continued detention are the public perception of
    the reputation of the administration of justice and the likelihood Viscomi will
    reoffend. In my view, Viscomis proposed release plan adequately addresses these
    concerns.

[31]

The
    proposed release plan is very restrictive. It amounts to house arrest (save for
    five hours per week), under which Viscomis parents would maintain custody over
    their cell phones and laptops, change the passwords on them daily and lock them
    up at night. The plan provides Viscomi is not to use, possess or access any device
    that can connect to the internet. Wireless internet would be disabled. Under
    the plan, Viscomi would effectively have no way to access the internet and thus
    reoffend inside his parents home.

[32]

In
    addition, he would likely be prevented from reoffending outside the home. Under
    the proposed release plan, Viscomi would be subject to electronic monitoring,
    which would restrict his ability to leave his parents home. In practical terms,
    electronic monitoring should prevent him from going, for example, to an
    internet café, and reoffending.

[33]

I
    acknowledge that the release plan, though very restrictive, is not foolproof.
    Viscomis parents have jobs, which would leave Viscomi alone and unsupervised
    in the home for more than 20 hours per week. Moreover, an employee of the
    proposed electronic monitoring company, Jemtec Inc., swore an affidavit in
    which he acknowledged as follows:

I am aware that Jemtec does not believe that any electronic
    monitoring system can:

·

prevent the Participant from committing crime; or

·

physically restrict the Participants movement.

[34]

In
    the light of the diminished public interest in detention in the extradition
    context, and the restrictive bail plan, I do not think that by itself the
    public interest would justify Viscomis continued detention pending his appeal
    and application for judicial review.

C.

Conclusion

[35]

I
    have not been persuaded that Viscomi has raised an arguable ground of appeal
    from his committal order. For this reason alone, I would dismiss his
    application for bail. He shall have until January 9, 2015, to perfect his
    appeal and application for judicial review. They should then be scheduled for
    an early hearing in 2015.

Released: December 5, 2014 (J.L.)

John Laskin J.A.





[1]
Skype is software that allows users to chat with each other via text, audio and
    video.



[2]
Viscomi was arrested on Canadian charges in March 2012. The Attorney General of
    Ontario has withdrawn these charges in the light of the extradition
    proceedings.



[3]
2014 SCC 43, 375 D.L.R. (4th) 255.



[4]
2006 SCC 33, [2006] 2 S.C.R. 77.



[5]
2001 SCC 54, [2001] 2 S.C.R. 828.



[6]
2004 SCC 77, [2004] 3 S.C.R. 635.



[7]
2012 ONCA 622, 112 O.R. (3d) 496, leave to appeal to S.C.C. refused, [2012]
    S.C.C.A. No. 490.



[8]
An IP address is an identifying number that an internet service provider
    assigns to a subscriber when the subscribers device connects to the internet.
    Internet service providers keep track of the dates and times that IP addresses
    are assigned to their subscribers. They can thus determine when a subscribers
    account was used to access the internet at any given time. But, as Doherty J.A.
    notes in
R. v. Ward
, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 23,
    this is not conclusive proof that the subscriber accessed the internet:

However
    that does not necessarily mean that the subscriber himself or herself was using
    the computer connected to the Internet at that time, or that it was even the
    subscriber's computer that was connected to the Internet. A wired or wireless
    network may link multiple computers to a central device referred to as a shared
    access point. When more than one computer is accessing the Internet through a
    shared access point at the same time, there are additional technical issues
    that may arise.



[9]
2012 ONCA 660, 112 O.R. (3d) 321.



[10]
R.S.C. 1985, c. 30 (4th Supp.).



[11]
(2005), 192 C.C.C. (3d) 149.



[12]
(2003), 63 O.R. (3d) 465.



[13]
2009 ONCA 137, 95 O.R. (3d) 187.


