



COURT OF APPEAL FOR ONTARIO

CITATION: United
    States v. Viscomi, 2015 ONCA 484

DATE: 20150630

DOCKET: C57211, C57910, C59973, and C59982

Simmons, Cronk and Blair JJ.A.

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

BETWEEN (C57211, C57910)

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

Applicant/Respondent

and

Marco Viscomi a.k.a. Mark Viscomi

Respondent/Appellant

IN THE MATTER OF the
Mutual
    Legal Assistance in Criminal Matters Act
, R.S.C.

1985, c. 30 (4
th
Supp.)

BETWEEN (C59973)

Marco Viscomi

Applicant/Appellant

and

The Attorney
    General of Ontario

Respondent/Respondent

and

The Attorney
    General of Canada

Respondent/Respondent

AND BETWEEN (C59982)

Brandon Lane

Applicant/Appellant

and

The Attorney
    General of Ontario

Respondent/Respondent

and

The Attorney
    General of Canada

Respondent/Respondent

Julianna A. Greenspan, Joseph S. Wilkinson, and Bradley
    Greenshields for the appellant Marco Viscomi (C57211, C57910 and C59973)

John Norris and Meara Conway, for the appellant Brandon
    Lane (C59982)

Richard Kramer and Nancy Denison, for the respondent The
    Attorney General of Canada (C59973 and C59982), and for the respondent The
    Attorney General of Canada on behalf of the United States of America (C57211)
    and on behalf of the Minister of Justice (C57910)

Robert Hubbard and Michael Fawcett, for the respondent
    The Attorney General of Ontario (C59973 and C59982)

Heard: June 8 and 9, 2015

On appeal from the committal order of Justice K.L.
    Campbell of the Superior Court of Justice, dated May 24, 2013, with reasons
    reported at 2013 ONSC 2829, the order of Justice F.E. McWatt of the Superior
    Court of Justice, dated October 11, 2012, with reasons reported at [2012] O.J.
    No. 4979, and the judgment of Justice M. Code of the Superior Court of Justice,
    dated January 9, 2015, with reasons reported at 2015 ONSC 61, and on judicial
    review of the decision of the Minister of Justice, dated October 17, 2013.

R.A. Blair J.A.:

BACKGROUND AND CHRONOLOGY

[1]

The United States of America sought the extradition of the two
    appellants, Marco Viscomi and Brandon Lane, in two unrelated proceedings
    arising out of charges involving internet luring, child exploitation and child
    pornography.  Both were committed for extradition.

Mr. Lane

[2]

Mr. Lane is wanted in the United States for prosecution on charges relating
    to his administrative role in a child-exploitation enterprise linked to an
    online bulletin board.  The United States-based website, Dreamboard, advertised
    and distributed hard core child pornography.

[3]

Mr. Lanes extradition proceedings are no longer active.  He was
    subsequently convicted in Canada on other child pornography charges and is
    currently serving a nine and one-half year sentence in prison.  He is no longer
    contesting his committal for extradition, but remains involved in these
    proceedings solely for purposes of the constitutional challenge to the
    gathering and sending provisions of the
Mutual Legal Assistance in
    Criminal Matters Act
, R.S.C. 1985, c. 30 (4
th
Supp.) (MLACMA)
    described below.  During the course of the extradition proceedings, the United
    States requested assistance under that legislation to obtain the fruits of
    searches and seizures conducted by the police in Ontario relating to Mr. Lane,
    just as they would do in the proceedings relating to Mr. Viscomi.

Mr. Viscomi

[4]

Mr. Viscomis extradition is sought in relation to an internet
    communication between someone and a 17-year old girl in Virginia Beach in the
    United States on January 5-6, 2012.  The communication took place first in a
    chat room, then by means of a Skype-chat, and finally by way of a Skype
    video call that enabled the person communicating with the girl to see her on a
    webcam, but prevented her from seeing him.  It is alleged that during the
    communication, the person coerced, threatened, extorted and otherwise manipulated
    the girl in ways that led to her exposing her breasts and then engaging in a
    series of explicit sexual and sexually violent activities with her 13-year old
    sister.

[5]

Everyone acknowledges that internet child luring and exploitation
    occurred.  However, the lynch-pin issue concerning the Viscomi proceedings is
    whether he is the someone who was on the other end of the video call.

[6]

Through the computer used by the victim, the Virginia Beach Police were
    able to trace the communications through a residential Internet Service
    Provider (ISP) in Ontario, Zing Networks, to a numerical, ten-digit Internet
    Protocol (IP) address in Ontario.  They learned from the ISP that a Mark
    Viscomi was the subscriber to the IP address and that it had been assigned to his
    account during the night in question.  A residential address in Stouffville,
    Ontario was given for the subscriber.  The Virginia Beach Police also had
    information from a valid Ontario drivers licence abstract, provided by the
    Ontario police, that a Marco Viscomi listed that same address as his
    residential address.

[7]

This ISP information was obtained without prior judicial authorization.
    The governing authority at the time was this Courts decision in
R v. Ward
,
    2012 ONCA 660, 112 O.R. (3d) 321, which held that the police did not require a
    warrant to obtain ISP subscriber information.  Subsequently, the law changed as
    a result of the Supreme Court of Canadas decision in
R v. Spencer
,
    2014 SCC 43, [2014] 2 S.C.R. 212, and prior judicial authorization would now be
    necessary.

[8]

The Virginia Beach Police shared the ISP information it had obtained
    with the Ontario police force.  That information, along with the drivers
    license information, alone formed the basis for the Record of the Case (ROC)
    filed by the United States in support of its application for an order
    committing Mr. Viscomi for extradition.  The United States did not seek to rely
    on any information obtained as a result of searches and seizures by the Ontario
    police.

The Sequence of Events and Proceedings

[9]

Once in the hands of the Virginia Beach and Ontario police forces, the
    ISP information led to a waterfall of activities and proceedings extending from
    at least March 2012 to the date of the hearing before this Court in June 2015. 
    These activities and proceedings included:

(i) a warranted search
    of Mr. Viscomis residence in Stouffville and his student residence in
    Chatham-Kent, the seizure of computers and related devices, and the subsequent
    forensic analysis of those computers and devices;

(ii) his arrest on
    March 22, 2012 on Canadian charges of luring a child, extortion, and uttering
    threats, and his release on bail the same day, on consent;

(iii) his subsequent
    arrest on an extradition warrant on August 9, 2012;

(iv) the withdrawal of
    the Canadian charges on August 10, 2012, in favour of the United States
    extradition proceedings;

(v) a detention order
    pending the extradition hearing, issued by Benotto J. (as she then was) on
    August 16, 2012 (Mr. Viscomi remains detained to this day);

(vi) an unsuccessful
    attempt by Mr. Viscomi to obtain disclosure of the fruits of the Ontario
    searches for purposes of his committal hearing  dismissed as frivolous and
    vexatious at the behest of the Crown by McWatt J. on October 11, 2012, with
    reasons released to the parties on October 22, 2012;

(vii) two
ex parte
Gathering Orders issued at the request of the United States on November 6,
    2012 under the MLACMA regime (relating to the fruits of the Ontario search and
    seizure and the Zing Networks information), and an
ex parte
Sending
    Order pursuant to the same legislation permitting the Ontario authorities to
    send that information to the United States authorities on March 12, 2013, all
    of which were issued by Code J.;

(viii) the committal
    hearing and the order of K.L. Campbell J. committing Mr. Viscomi for
    extradition on May 24, 2013;

(ix) the Ministers
    order to surrender, dated October 17, 2013;

(x) Mr. Viscomis
    change in defence counsel in January 2014;

(xi) an
inter
    partes Wilson
motion
[1]
 dismissed by Code J. on September 11, 2014  to re-open the MLACMA
    proceedings, based on allegations of non-disclosure and the effect of the
    Supreme Court of Canadas decision in
Spencer
;

(xii) an application
    for leave to appeal Code J.s decision on the
Wilson
application,
    dismissed by Strathy C.J.O. on October 31, 2014:
R v. Viscomi,
2014
    ONCA 765; and

(xiii) a constitutional
    challenge to the gathering and sending provisions in the MLACMA, dismissed by
    Code J. on January 9, 2015.

[10]

What
    emerges at the bottom of this waterfall of events, for the purposes of the
    proceedings before this Court are: (i) an appeal from the order committing Mr.
    Viscomi for extradition; (ii) an appeal from the disclosure order of McWatt J.;
    (iii) an application for judicial review of the Ministers decision to
    surrender Mr. Viscomi for extradition; and (iv) an appeal by both Mr. Viscomi
    and Mr. Lane against Code J.s dismissal of their constitutional challenge to
    the gathering and sending provisions in the MLACMA regime.

[11]

Many
    issues of a
Charter
and evidentiary nature, including a fresh evidence
    application, were argued in these contexts.  While the constitutional issue
    must be resolved, the proceedings relating to Mr. Viscomis extradition fall to
    be determined on the answer to one simple, discreet question: was it open to
    the extradition judge to draw the inference that he drew from the information
    relating to the IP address and Mr. Viscomis residential address, namely that
    it was Mr. Viscomi who was the user of that IP address at the relevant time?

[12]

In
    my respectful view, the answer to that question is no.  The order for committal
    must be set aside.  Consequently, there is no basis for the Ministers decision
    to order Mr. Viscomis surrender and it, too, must fall.  Except for some brief
    comments on the effect of
Spencer
in the circumstances of this case,
    it is not necessary to deal with the other issues raised, save for the
    constitutional challenge.  The appeal from that challenge, in my view, must be
    dismissed.

[13]

I
    come to these conclusions for the following reasons.

ANALYSIS

A.

The Committal Order

[14]

On
    May 24, 2013, Mr. Viscomi was committed for extradition by order of K.L.
    Campbell J. on the American equivalent of the Canadian crime of child luring. 
    The only live issue at the hearing was whether there was sufficient evidence
    identifying Mr. Viscomi as the perpetrator of the offences.

[15]

The
    ROC filed in support of the application indicated the following.  By utilising
    the chat session log and the information contained on the victims computer,
    the Virginia Beach Police were able to trace the computer involved in the
    communication with the victim, through Skype, to an ISP in Ontario, Zing
    Networks, and a ten-digit IP address (24.138.105.47).  Relying on what was then
    thought to be the lawful criminal investigation exception to the privacy
    provisions in
The Personal Information Protection and Electronic Documents
    Act
, S.C. 2000, c. 5 (PIPEDA), the U.S. investigators contacted Zing
    Networks and requested the subscriber information relating to that IP address. 
    They were told that the subscriber was a Mark Viscomi at a specific address
    in Stouffville, Ontario (the Stouffville Address), and that that subscriber
    was assigned to that IP address from December 6, 2011 to January 20, 2012, the
    time period spanning the offences.

[16]

The
    ROC also attached an Ontario drivers license abstract and a photograph of
    Marco Viscomi, provided by Canadian law enforcement officials, which showed
    Marco Viscomis address as the Stouffville Address  the same address reported
    by Zing Networks to be associated with the subscriber to IP address
    24.138.105.47.  The ROC indicated that Marco Viscomi was currently living (as
    at August 17, 2012) at a specific address in Chatham-Kent, Ontario (the
    Chatham-Kent Address). A Supplemental ROC, dated October 3, 2012, corrected
    that information to say that Mr. Viscomi was only living at the Chatham-Kent
    Address temporarily in the spring of 2012, but that in August 2012 he was
    living at the Stouffville Address, where he was arrested on the extradition
    warrant.

[17]

From
    this evidence, as well as information about the contractual terms of the ISP
    contract, the extradition judge drew the inference that it was Mr. Viscomi who
    was the
user
of the IP address at the time in question.

[18]

Respectfully,
    this was not an inference that could reasonably be drawn from that evidence. 
    The evidence could reasonably lead to a finding that Marco Viscomi, the person
    sought in these proceedings, was the
subscriber
to the IP address at
    the time the crime was committed utilizing that IP address.  However, on that
    evidence alone, it was simply too great a leap to draw the inference that he
    was the
user
of the IP address at the relevant time.

[19]

The
    extradition judge was alive to the proper test to be applied for committal
    under the
Extradition Act
, S.C. 1999, c. 18.  Under s. 29(1), the
    judge shall order committal into custody to await surrender where there is
    evidence admissible under the Act of conduct that, had it occurred in Canada,
    would justify committal for trial in Canada on the offence set out in the
    authority to proceed.  In short, the judge must be satisfied that there is some
    evidence upon which a reasonable jury, properly instructed, could return a
    verdict of guilty:
United States of America v. Shephard
, [1977] 2
    S.C.R. 1067, at p. 1080.

[20]

Where
    the evidence is circumstantial in nature, the extradition judge must conduct a
    limited weighing exercise to ensure the circumstantial evidence is reasonably
    capable of supporting the inferences the prosecution seeks to have drawn. 
    However, at this stage of the extradition process it is not the judges role to
    choose between equally reasonable inferences. As long as the inference in
    favour of the Crown is reasonable, the judge must proceed on that basis.  As
    Sharpe J.A. explained in
United States of America v. Leonard
, 2012
    ONCA 622, 112 O.R. (3d) 496, at para. 31:

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:
United States v.
    Ferras
, 2006 SCC 33, [2006] 2 S.C.R. 77 (S.C.C.). 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:
Italy (Republic) v. Caruana
,
    [2004] O.J. No. 5851 (Ont. S.C.J.), Watt J., at para. 153, aff'd 2007 ONCA 488,
    157 C.R.R. 1 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A.
    No. 474 (S.C.C.).

[21]

However,
    as the extradition judge acknowledged, a reasonable inference may not be based
    on speculation.  Many cases have cautioned against conflating a reasonable
    inference, on the one hand, and mere speculation, conjecture, or even an
    educated guess, on the other: see, for example,
R v. Munoz
(2006), 86
    O.R. (3d) 134 (S.C.), at paras. 21-31;
Unites States of America v. Huynh
(2005), 200 C.C.C. (3d) 305 (Ont. C.A.), at paras. 6-7.

[22]

In
R v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at para. 52, Doherty
    J.A. underscored the importance of an inference being grounded in established
    fact:

A trier of fact may draw factual inferences from the evidence.
    The inferences must, however, be ones which can be reasonably and logically
    drawn from a fact or group of facts established by the evidence. An inference
    which does not flow logically and reasonably from established facts cannot be
    made and is condemned as conjecture and speculation.

See also: David Watt,
Watts Manual of Criminal
    Evidence
(Toronto: Carswell, 2014), at § 9.01; S. Casey Hill et al.,
McWilliams
    Canadian Criminal Evidence
, loose-leaf (2014-5), 5th ed. (Toronto: Canada
    Law Book, 2015), at pp. 31-63 to 31-65.

[23]

Here,
    the extradition judge drew the inference that it was Mr. Viscomi who was using
    the identified IP address at the time of the crime.  He did so based upon the
    following evidence in the ROC:

(i) The chat session
    log and the complainants computer revealed the screen name and account name used
    by the perpetrator of the offence of child luring;

(ii) The screen name
    and account name used by the perpetrator of the crime was traced back to a
    numerical, ten-digit IP address in Ontario;

(iii) According to the
    residential ISP in Ontario, the IP address associated with the crime was
    assigned, between December 6, 2011 and January 20, 2012, to Mark Viscomi at
    the Stouffville Address in Ontario. As already mentioned, the crime took place
    on the night of January 5-6, 2012;

(iv) On the respondents
    valid Ontario drivers licence abstract, in the name of Marco Viscomi, his
    residential address is listed as the Stouffville Address, the same residential
    address associated with the relevant IP address identified in the business
    records of the ISP.

[24]

There
    is an initial, but important, caveat to these established facts, however. 
    The extradition judge appears to have accepted that the ROC established Mr.
    Viscomis residential address as the address associated with the relevant IP
    address.  Later in his reasons (at para. 18), he makes a similar comment,
    concluding that the residential address obtained from the ISP subscriber
    information and the Ontario drivers license abstract  the Stouffville Address
     showed Mr. Viscomis residential address as the exact same residential
    address
as the one associated with this IP address
 (emphasis added).

[25]

Respectfully,
    this constitutes a misapprehension of the evidence.  There is nothing in the
    ROC to establish that the
subscribers residential address
and the
address
    associated with the IP address
are one and the same.  Indeed, there is no
    evidence to explain what an IP address is, in the context of this case, or how
    it worked.  We do not know on this record whether an IP address identifies a
    particular subscriber only, or a particular device only, or whether it
    identifies a particular residential address at which the IP address is located,
    or even whether the IP address is limited to one particular residential
    location or could have been used at different locations. Although the ISP
    contractual documentation contained in the Supplemental ROC indicates that Zing
    Networks agrees to provide high speed wireless internet service to the
    subscriber, we do not know whether the service was one that could link multiple
    computers or other internet-linked devices at different locations to a shared
    access point or how the service was to be provided in this case at all.

[26]

In
    particular, regarding the inference ultimately drawn about the
user
of
    the IP address at the relevant time, even if one assumes the IP address could
    only have been accessed from the ISP subscribers residential address (
i.e.
,
    Mr. Viscomis residence), we do not know whether it could be accessed by more
    than one person or by more than one internet-linked device at that address.

[27]

The
    uncertainties created by the lack of this type of evidence are reinforced by
    the uncertainties that exist, even when it is available.  As Doherty J.A.
    observed in
Ward
, there is a need to stay within the evidentiary
    record in cases turning on the nature of an IP address because the evidentiary
    record on the subject can vary.  At paragraph 18, he said:

I refer specifically to the need to stay within the evidentiary
    record, usually a self-evident proposition, because a review of other cases that
    have addressed this same issue suggests an understanding of the nature of an
    Internet protocol address ("IP address") that is different than that
    offered by the evidence in this case. Some cases indicate that the IP address
    is "unique to that subscriber", e.g.,
Kwok
, at para. 8, and
    that armed with subscriber information and an IP address the police can compile
    a "history of [the subscriber's] activity on that network":
Trapp
,
    at para. 36, Cameron J.A., for the majority, at para. 78, Ottenbreit J.A., concurring.
    As outlined below, the evidence in this case does not support the contention
    that IP addresses are unique to individual subscribers or that combining an IP
    address with subscriber information allows the police to compile a history of a
    person's activity on the Internet.

[28]

The
    point is that evidence regarding these matters is important because not all IP
    address protocols may operate in the same way.  Here, there is no such evidence
    in the ROC.

[29]

It
    was in the context of the evidentiary record before him in
Ward
that
    Doherty J.A. made the comment  relied on by both sides here  that ISP records
    indicating that an IP address is assigned to a subscriber at certain dates and
    times 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
    subscribers computer that was connected to the Internet:
Ward
, at
    para. 23.  Mr. Viscomi relies on this statement for the proposition that
    information regarding the subscriber and the IP address cannot, without more,
    provide the necessary link to draw an inference about who used that IP address
    at a particular time.  The Crown relies on it for the contrary view.

[30]

The
    extradition judge accepted the Crowns position.  He concluded that the
    comments of Doherty J.A. suggest only that ISP subscriber information does not
conclusively prove
that an individual assigned to an IP address at the
    time of an offence committed the alleged offence, given the possibility that
    other individuals may have had access to the internet via the IP address
    assigned to the account (para. 25, emphasis in original), and that the ISP
    information went some distance to identifying [Mr. Viscomi] as the person
    involved in the child luring activities (para. 27).  In short, because the
    ISP information did not necessarily mean the subscriber was using the IP
    address, it also did not necessarily mean he was not.  The inference that Mr.
    Viscomi was using the IP address at the time of the crime could therefore be
    drawn.

[31]

I
    do not read
Ward
in that fashion, and, respectfully, I do not agree. 
    The inference that Mr. Viscomi was the
user
of the IP address assigned
    to him at the relevant time is not one that can reasonably and logically be
    drawn from the fact that he was the
subscriber
to that IP address and
    that the residential address for purposes of his subscriber account was the
    same as that shown on the abstract of his drivers licence.

[32]

By
    way of analogy, take, for example, a situation where a car is recklessly driven
    through a red light, striking another vehicle and very seriously injuring a
    passenger in that vehicle. The first vehicle and driver disappear, but an
    observer has taken down the licence plate number and the police are able to
    trace the owner of the vehicle with that information.  The observer did not see
    the driver, and there is no other evidence in relation to the identity of the
    driver of the vehicle at the time. Could the registered owner of the vehicle be
    convicted of criminal negligence causing bodily harm on the basis of the
    foregoing evidence alone?  I would think that to pose the question is to answer
    it in the negative.  See, for example,
R. v. Hicks
(1988), 42 C.C.C.
    (3d) 394 (C.A.), at p. 407, affd [1990] 1 S.C.R. 120;
R. v. Van Wyk
,
    [1999] O.J. No. 3515 (S.C.), at paras. 24-25.

[33]

United
    States of America v. Huynh
is an instructive example of the inference
    drawing process in the extradition context.  Mr. Huynh was sought for
    extradition to the United States on charges involving the laundering of
    proceeds of crime obtained by trafficking in a controlled substance. The
    material relied on in support of the extradition justified the inference that
    Mr. Huynh had conspired with others to covertly transfer very large amounts of
    cash from the United States to Canada. However, the ROC in that case did not
    contain any direct evidence as to the source of the cash. Mr. Huynh was
    nonetheless committed for extradition.

[34]

This
    Court allowed the appeal and quashed the committal. While the material
    identified by the United States permitted the inference that the cash was from
    the proceeds of some illicit activity, there was no evidence as to the source
    of the material, and there was nothing in the material that would reasonably
    permit a trier of fact to infer that the cash was the proceeds of drug
    trafficking and not some other illicit activity. Doherty J.A. put it this way,
    at para. 7:

The material identified by the respondent certainly permits the
    inference that the cash was the proceeds of some illicit activity.
Drug
    trafficking comes readily to mind as one possible source. The process of
    drawing inferences from evidence is not, however, the same as speculating even
    where the circumstances permit an educated guess
. The gap between the
    inference that the cash was the proceeds of illicit activity and the further
    inference that the illicit activity was trafficking in a controlled substance
    can only be bridged by evidence.
The trier of fact will assess that
    evidence in the light of common sense and human experience, but neither are a
    substitute for evidence
. [Emphasis added.]

[35]

Here,
    based on the ISP information, the notion that Mr. Viscomi was the user of the
    IP address assigned to his subscriber account at the relevant time is one that
    may [come] readily to mind as one possible [conclusion]. However, the gap
    between the subscriber information and the factual inference that Mr. Viscomi
    was the user of the IP address at the relevant time can only be bridged by
    evidence.  There is no such evidence in the ROC.  As Doherty J.A. points out,
    speculation, educated guesses, and even common sense and human experience
    cannot provide a substitute for such evidence.

[36]

For
    the foregoing reasons, I conclude that the inference drawn by the extradition
    judge that Mr. Viscomi was the person
using
the IP address at the
    relevant time is not a permissible inference that could reasonably be drawn
    from the established facts in the ROC.  In my view, a reasonable trier of fact,
    properly instructed, could not convict Mr. Viscomi on the basis of the ISP and
    related drivers license abstract information alone.  It follows that the order
    committing Mr. Viscomi for extradition to the United States cannot stand and
    must be quashed.

B.

The Disclosure Order

[37]

In
    view of the foregoing, the order of McWatt J. dismissing Mr. Viscomis
    application for further disclosure in the committal proceeding is somewhat
    academic.

[38]

Suffice
    it to say that I agree with the application judge.  I see no error in the
    exercise of her discretion not to order production of the materials seized by
    the Ontario police to further some subsequent
Charter
challenge when:
    (a) the requesting state made it clear that it was not relying on the fruits of
    that search to support the committal application; and (b) there was no air of
    reality with respect to Mr. Viscomis suggested
Charter
violations.

[39]

I
    would dismiss the appeal from the disclosure order for the reasons given by the
    application judge.

C.

The Surrender Order

[40]

The
    Ministers power to order surrender is predicated on the person sought having
    been committed for extradition.  Section 40(1) of the
Extradition Act
states:

The Minister may, within a period of 90 days after the date of
    the persons committal to await surrender, personally order that the person be
    surrendered to the extradition partner.

[41]

Given
    the decision to quash the order committing Mr. Viscomi for extradition, it
    follows as well that the Ministers decision to surrender him for extradition
    must fall too.

[42]

I
    need not deal, therefore, with the many issues raised by Mr. Viscomi on his
    application for judicial review of the Ministers decision.

[43]

Notwithstanding
    the foregoing disposition, however, the Crown may still decide to institute
    further proceedings, whether on new or the same evidence, provided the new
    proceedings would not constitute an abuse of process:
Extradition Act
,
    s. 4.  That being the case, there is one issue raised in both the committal and
    surrender proceedings that warrants comment, in the event the matter should be
    pursued further.  I refer to the effect of the Supreme Court of Canadas
    decision in
Spencer
.

[44]

In
Spencer
the Court ruled that the police are required to obtain a
    warrant to obtain ISP subscriber information.  That was not the law at the time
    the extradition proceedings were commenced against Mr. Viscomi (and Mr. Lane)
    or at the time the Ontario police utilised the ISP subscriber information
    provided to them by the Virginia Beach Police in order to obtain the warrants
    to search Mr. Viscomis residences.  Prior to
Spencer, Ward
provided
    that ISP subscriber information could be obtained in Ontario without prior
    judicial authorization.

[45]

Mr.
    Viscomi argues that he is entitled to the benefit of the change in law since
Spencer
and that none of the evidence in the ROC  or the fruits of the searches and seizures
    predicated on the warrantless ISP information  is admissible against him and
    must therefore be excluded under s. 24(2) of the
Charter.
There are
    two principal difficulties with this argument, however.  The first is the
    ultimate disposition made by the Supreme Court of Canada on the merits in
Spencer.
The second is the inapplicability of the
Charter
to foreign officials.

[46]

Spencer
involved ISP subscriber information obtained without a warrant.  The Court held
    that procedure to be unconstitutional.  It declined, however, to exclude the
    evidence under s. 24(2) because the police reasonably believed the law did not
    require a warrant at the relevant time.  Given the relative lack of seriousness
    of the
Charter
breach, therefore, and the general interest of society
    in having serious criminal matters determined on the merits, the first and
    third branch of the test set out in
R v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353, militated against the exclusion of the evidence.  I see no material
    difference between the circumstances in
Spencer
and those existing
    here and do not see any basis involving the warrantless ISP search that would
    lead to a different result.

[47]

Turning
    to the second difficulty, it is well-established that the
Charter
governs the conduct of Canadian state actors, but does not apply to the conduct
    of foreign authorities conducting a lawful investigation within their sovereign
    jurisdictions, even where Canadian authorities may have cooperated with them:
    see
R v. Terry
, [1996] 2 S.C.R. 207, at paras. 14-19;
Schreiber v.
    Canada (Attorney General),
[1998] 1 S.C.R. 841, at paras. 27-34;
R v.
    Hape
, [2007] 2 S.C.R. 292;
U.S.A. v. Dynar
, [1997] 2 S.C.R. 462,
    at paras. 136-141.

[48]

Here,
    the Virginia Beach Police were conducting a criminal investigation in the
    United States, in conformity with the laws of the United States (and, at the
    time, with the law in Canada).  The
Charter
does not govern the
    conduct of foreign police in such circumstances:
Dynar
, at para. 139. 
    In addition, once they had obtained the ISP information, the Virginia Beach
    Police were entitled to share that information with the Ontario police:
Wakeling
    v. United States of America
,

[2014] 3 S.C.R. 549, at paras. 29 and
    57 (Moldaver J.), and 96 (McLachlin C.J.C.).

[49]

I
    reject the argument that because the Virginia Beach Police purported to rely on
    the law enforcement exceptions in PIPEDA in making their request for the ISP
    information, they were thereby transmogrified into Canadian state actors for
    that purpose.  They were American authorities carrying out an American
    investigation on American soil.  If the mere reliance on what was then a lawful
    procedure in making contact with a Canadian entity turned them into Canadian
    actors in that context, there would be no basis for distinguishing between the
    conduct of Canadian and foreign officials in cases involving international
    police cooperation.  The distinction exists in law, however: see
Dynar
,
    at paras. 138-139. I note that neither Mr. Viscomis nor Mr. Lanes cases
    involved a joint international police investigation.  To the extent the
    proceedings continued at the same time in Canada and the United States, they
    were parallel proceedings only.

[50]

At
    the end of the day, I am satisfied that the 
Spencer
factor is of no
    assistance to Mr. Viscomi in the circumstances of this extradition proceeding.

D.

The Constitutionality
    of the Gathering and Sending Provisions of the MLACMA Regime

[51]

At
    approximately the same time as it commenced extradition proceedings against Mr.
    Viscomi, and in separate proceedings against Mr. Lane, the United States took
    steps under the gathering and sending provisions of the MLACMA to obtain
    the fruits of searches and seizures conducted by the police in Ontario with
    respect to the charges against the two appellants.

[52]

Justice
    McWatt issued both gathering and sending orders with respect to the materials
    relating to Mr. Lane on April 23, 2012.  Justice Code issued two gathering
    orders on November 6, 2012 and a sending order on March 12, 2013 with respect
    to the materials relating to Mr. Viscomi.  These applications all proceeded on
    an
ex parte
basis.  Neither judge exercised the discretion open to
    them under the MLACMA regime to give notice to the appellants.

[53]

The
    appellants each challenge the constitutionality of s. 18 (the gathering order
    provision) and s. 20 (the sending order provision) of the MLACMA on the ground
    that they are presumptively
ex parte
 proceedings, that is, there is
    no mandatory requirement for a hearing on notice to the target of the
    investigation before the gathered materials are sent to the foreign
    jurisdiction.  They say that this is unconstitutional because, in their view,
    the target of a foreign investigation must have the right to assert whatever
Charter
or other objections the target may have to the procedure before the fruits of
    the gathering exercise are sent to the foreign jurisdiction, out of the reach
    of Canadian courts, thus rendering them immune to attacks that may be available
    in Canada under Canadian law.  Put another way, they submit that the MLACMA
    gathering and sending regime does not have adequate accountability measures (
i.e.
,
    notice and the right to challenge the authorizations) to pass constitutional
    muster.

[54]

I
    disagree.

[55]

The
    appellants each advance a variety of submissions challenging the legality of
    the search and seizure procedures conducted by the Canadian authorities.  In
    Mr. Viscomis case  leaving aside the
Spencer
issue discussed above 
    Code J. dealt with those arguments on the separate
Wilson
hearing and
    rejected them.  Leave to appeal from that decision was denied by Strathy
    C.J.O.  Mr. Lanes case is not as clear.  The extradition judge stayed the
    extradition proceedings on a number of grounds.  However, this Court allowed
    the Crowns appeal from that decision and ordered a new extradition hearing. In
    doing so, the Court rejected the extradition judges most serious findings of
    fact regarding misconduct by the Crown law officers and police officers, but the
    extent to which, if at all, any of the other findings regarding the alleged
    search and seizure violations stand is unclear.  As noted above, Mr. Lane has
    now consented to his committal for extradition, but the proceedings are on hold
    as he is currently in prison in Canada on other charges.

[56]

I
    do not think that the particulars of the individual violations, if any, are of
    much relevance to the constitutional challenge, in any event.  It is evident
    that there may well be occasions under the MLACMA regime where materials that
    might be subject to
Charter
challenge in Canada are sent to a
    requesting state.  The issue is whether there are adequate procedural
    protections  or, as the appellants would put it, accountability measures 
    in place under the regime to sustain its constitutional validity under s. 7 and
    s. 8 of the
Charter
.

[57]

Justice
    Code concluded there were.  In a careful and thorough decision, he dismissed
    the constitutional challenge on January 9, 2015.  I agree.

[58]

As
    Charron J. observed, in
R v. Rodgers
, 2006 SCC 15,

207 C.C.C.
    (3d) 225, at paras. 46-47, there is no constitutional guarantee to the most
    favourable procedure available; rather, [t]he constitutional norm  is
    procedural fairness, and whether or not notice and participation are required
    to meet that norm will depend upon the context and what safeguards are in
    place.

[59]

In
    his comprehensive reasons, Code J. considered and analysed:

(i) the gathering and
    sending regime set out in ss. 17-21 of the MLACMA, including the fact that,
    while proceedings are initially mandated to be
ex parte
, both the
    gathering and sending provisions give the hearing judge discretion to impose
    broad terms, including the giving of notice to targets of the investigation;

(ii) a consistent line
    of authority in this Court holding that the MLACMA regime provides for an
    investigatory process to help Canadas treaty partners in criminal
    investigations, that such a process should be dealt with as expeditiously and
    confidentially as possible, and that the proceedings under the MLACMA are
    presumptively
ex parte
for these reasons: see,
United States v.
    Lane
, 2014 ONCA 506, 121 O.R. (3d) 721, leave to appeal to S.C.C. refused,
    [2014] S.C.C.A. No. 425 (the successful Crown appeal of the stay of extradition
    imposed in the appellant Lanes case);
United States v. McAmmond
,
    (2005), 192 C.C.C. (3d) 149 (Ont. C.A.);
United Kingdom v. Ramsden
(1996), 108 C.C.C. (3d) 289 (Ont. C.A.), at paras. 39-40, and 53, leave to
    appeal to S.C.C. refused, [1996] S.C.C.A. No. 443;

(iii) a further line
    of authority relating to different types of investigatory search and seizure
    regimes holding that presumptively
ex parte
proceedings in such
    circumstances do not violate the constitutional norm of procedural fairness
    where procedural safeguards are in place: see
R v. Jackpine
(2004),
    182 C.C.C. (3d) 449 (Ont. C.A.), at paras. 31-32 and 34 (DNA data bank warrants
    for certain convicted offenders), revd in the result but not on this point,
R.
    v. Rodgers
, 2006 SCC 15,

207 C.C.C. (3d) 225 (for concurring
    remarks on this point from
Rodgers
, see paras. 45-48 and 51-55);
R.
    v. S.A.B
., 2003 SCC 60, 178 C.C.C. (3d) 193, at para.
56
    (DNA warrants);
R. v. S.F.
(2000), 141 C.C.C. (3d) 225 (Ont. C.A.), at
    paras.
39-41;

(iv) the appellants
    submissions that the trans-border context of the MLACMA changes the normal
    constitutional principles and requires that notice be given to the target of
    the requesting states investigation before the sought-after materials are sent
    from the jurisdiction; and

(v) the impact of the
    Supreme Court of Canadas decisions in
Wakeling v. United States of America
,
    2014 SCC 72, [2014] 3 S.C.R. 549 (holding that co-operating international
    police forces have a common law right to share lawfully obtained investigatory
    information), and
R. v. Tse,
2012 SCC 16, [2012] 1 S.C.R. 531
    (striking down a wiretap provision in the
Criminal Code
because it
    contained no after-the-fact notice provisions for the target, where there were
    no prior accountability safeguards, including prior judicial authorization).

[60]

At
    the conclusion of his analysis, Code J. held that the gathering and sending
    powers found in s. 18 and s. 20 of the MLACMA comply with the constitutional
    requirement of procedural fairness because of the broad array of s. 7 and s. 8
    safeguards that easily satisfy the contextual test for procedural fairness.  
    He summarized the safeguard features of the legislation as follows, at para. 61
    of his reasons:

 First, these are
    "investigative tools" that generally require confidentiality and
    expedition, in order to be effective. Accordingly, there is a strong state
    interest in
ex parte
proceedings;

 Second, the
    investigation of cross-border or international crime is no different than
    domestic crime in this regard. Indeed, Canada's treaty obligations require
    confidentiality and expedition;

 Third, both the s.
    18 and s. 20 search and seizure powers require separate and distinct judicial
    hearings and warrants. The second stage "sending" hearing and warrant
    is a protection that is not found in the analogous legislative schemes of the
    United Kingdom, the United States, New Zealand, and Australia. In other words,
    the Canadian legislation is more protective of s. 8 interests than analogous
    regimes in other free and democratic countries;

 Fourth, the standard
    on which the s. 18 warrant issues is the normal constitutional standard of
    "reasonable grounds to believe that an offence has been committed and
    that relevant evidence will be found. See
Hunter et al v. Southam Inc.
(1984) 14 C.C.C. (3d) 97 (S.C.C.);

 Fifth, the judge has
    discretion not to grant the order, both at the s. 18 and s. 20 stages. See
R.
    v. Baron et al
(1993) 78 C.C.C. (3d) 510 (S.C.C.);

 Sixth, the judge has
    discretion to give notice to any interested party. In addition, the person who
    is the subject of the s. 18 Gathering Order can object and appear at a hearing
    pursuant to s. 18(7);

 Seventh, the judge
    has discretion to impose terms or conditions;

 Eighth, the s. 18
    and s. 20 hearings are based on a written record and the person who carries out
    the Gathering Order prepares a written report, all of which are preserved as
    court records;

 Ninth, the Minister
    controls both the front end and back end of the process, pursuant to ss. 17 and
    21, and can impose additional terms or conditions;

 Tenth, the Act is
    based on treaty obligations that are reciprocal. As a result, Canada can exert
    effective political and diplomatic pressure when there is a risk of misuse or
    abuse in relation to evidence sent by Canada;

 Eleventh, the
    treaties and the sending orders place limits on the use to which the evidence
    can be put;

 Twelfth, there are a
    number of available remedies when MLACMA evidence is used against a suspect or
    an accused, including a right of appeal pursuant to s. 35 of the Act. This
    remedial aspect of the scheme will be further discussed below.

[61]

Justice
    Code also noted that there were a number of after-the-fact remedies that
    remained available to the target of the investigation that weighed in favour of
    constitutionality in the contextual balancing exercise.

[62]

I
    have only briefly summarized the approach taken by Code J. and the reasons
    provided for his decision.  I do not think there is anything to be gained by
    adding a further layer of analysis to the constitutional challenge beyond those
    reasons.  I would dismiss the constitutional challenge to ss. 18 and 20 of
    MLACMA for the reasons he gave, with which I am in substantial agreement.

DISPOSITION

[63]

For
    all of the foregoing reasons, I would:

(i) allow the appeal
    from the order committing Mr. Viscomi for extradition, quash the committal
    order, and order that he be discharged;

(ii) dismiss the
    appeal from the disclosure order of McWatt J.;

(iii) set aside the
    order of the Minister for Mr. Viscomis surrender; and

(iv) dismiss the appeal
    from the order of Code J. dismissing the application of the appellants Viscomi
    and Lane for an order declaring ss. 18 and 20 of the MLACMA unconstitutional.

Released: J.S.  June 30, 2015

R.A.
    Blair J.A.

I
    agree Janet Simmons J.A.

I
    agree E.A. Cronk J.A.





[1]
See R v. Wilson (1993), 9 C.C.C. (3d) 97 (S.C.C.), holding that a court has
    inherent jurisdiction in criminal matters to review its own
ex parte
orders.


