



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Viscomi, 2019 ONCA 490

DATE: 20190614

DOCKET: C62967 and C64283

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

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

Respondent

and

Marco Viscomi

Applicant/Appellant

Julianna Greenspan and Brad Greenshields, for the  appellant

Jeffrey G. Johnston and Monika Rahman, for the  respondent

Heard: October 31, 2018

On appeal from the order of committal for extradition by Justice
    J. David McCombs of the Superior Court of Justice, dated October 25, 2016, with
    reasons reported at 2016 ONSC 6658, and on judicial review of the order of
    surrender of the Minister of Justice, dated August 15, 2017.

B.W. Miller J.A.:

A.

OVERVIEW

[1]

The United States of America seeks the extradition of the appellant to
    stand trial in Virginia for internet luring and child exploitation offences.
    The offences relate to internet communications with a 17-year-old girl on
    January 5-6. 2012. A series of communications on various platforms culminated
    in the perpetrator threatening and extorting the girl into engaging in a series
    of sexual and sexually violent acts with her 13 year old sister.

[2]

From information retrieved from the computer used by the children
    complainants, the Virginia Beach Police were able to determine that the
    perpetrators electronic communications with the children were made via a
    ten-digit Internet Protocol (IP) address that was assigned by a residential
    Internet Service Provider (ISP) in Ontario to one of its account subscribers.
    The ISP advised Virginia Beach Police that the IP address was assigned to an
    account holder named Mark Viscomi and provided his subscriber information,
    including his billing address. The Virginia Beach Police shared this
    information with the Ontario Provincial Police (OPP), who determined from a
    search of an Ontario drivers licence database that a licence-holder named
    Marco Viscomi had listed the same address as his residential address. It also
    determined that the phone number associated with the account was registered to
    S. Viscomi. The OPP attended at the residence and determined that a vehicle
    parked in the driveway was registered to Salvatore Viscomi at the same address.

[3]

Based on this evidence, the OPP swore an information to obtain a search
    warrant for the Stouffville residence (the Stouffville ITO), which it
    obtained on March 21, 2012 and executed the same day. The OPP seized items from
    the Stouffville residence including a computer that was subsequently determined
    not to have been used since 2008. The OPP determined that the Stouffville
    residence was the Viscomi family home. They were advised by the appellants
    sister that the appellant had left that residence on March 18 to live at a
    residence in Chatham-Kent, and that he had taken his laptop with him. The OPP
    concluded that the laptop likely contained evidence of the internet child
    abuse, swore a second ITO (the Chatham ITO), and obtained a warrant to search
    the Chatham-Kent residence. At the Chatham-Kent residence they seized a laptop
    and an external hard drive.

[4]

The appellant was arrested and charged with various criminal offences.
    Those charges were later withdrawn in favour of the extradition request, and on
    August 16, 2012, the appellant was detained pending an extradition hearing.

[5]

The evidence obtained from the American and Canadian sources included:

·

the Skype name and account name used by the individual who had
    been communicating with the victims;

·

the IP address associated with that individual;

·

the subscriber information for the IP address, identifying Mark
    Viscomi as the subscriber, with a billing address in Stouffville, Ontario;

·

that the IP address was a static IP address assigned exclusively
    to that subscriber;

·

that the home address for Marco Viscomi, taken from the Ontario
    drivers licence database, matched the ISPs billing address for Mark Viscomi;

·

the appellants sisters information to the OPP, given during the
    execution of the warrant at the Stouffville address, that the appellant had
    moved out a few days earlier and gone to a new address in Chatham-Kent, Ontario,
    taking his laptop with him; and

·

the laptop and hard drive seized from Viscomis Chatham-Kent
    residence, which contained the following data:

o

six thumbnail images of the two
    victims; in three of the images either or both of the victims are topless
    exposing their breasts to the camera;

o

copies of documents in the name of
    Mark Viscomi including a drivers licence, a medical indemnity card, school enrollment
    letter, and passport;

o

images of Viscomi in front of a
    webcam; and

o

videos of Viscomi with a woman.

B.

History of proceedings

[6]

After an extradition hearing, the appellant was ordered committed for
    extradition (the first committal order). The United States had presented a
    Record of the Case (the 2012 ROC) based entirely on evidence gathered by
    police in the United States, and not relying on any of the Canadian-gathered
    evidence from the searches of the Stouffville or the Chatham-Kent residences.

[7]

Subsequently, the Minister of Justice ordered his surrender to the
    United States.

[8]

This court quashed the first committal order on appeal on June 30, 2015,
    in
United States v. Viscomi
, 2015 ONCA 484, 126 O.R. (3d) 427 (
Viscomi
    #1
), on the basis that the 2012 ROC contained insufficient information to
    support an inference that the appellant was in fact the user of the IP address
    that was associated with the acts of exploitation.

[9]

The appellant was then re-arrested and served with a second ROC dated
    July 24, 2015 (the 2015 ROC), which relied on both the Canadian and
    US-gathered evidence. He brought an application for disclosure additional to
    what he had been provided following his initial arrest on domestic criminal
    charges. That application was dismissed. He also brought an application to
    exclude evidence under s. 24(2) of the
Charter
, on the basis of
    violations of his ss. 8, 9, and 10(b)
Charter
rights relating to the
    searches of the Stouffville and Chatham-Kent residences. That application was
    also dismissed.

[10]

The
    appellant was ordered committed for extradition a second time, on October 25,
    2016 (the second committal order), and on August 15, 2017, the Minister of
    Justice ordered the appellants unconditional surrender to the United States
    (the second surrender order).

[11]

The
    appellant now appeals the second committal order and seeks judicial review of
    the second surrender order.

C.

Issues

[12]

With
    respect to the appeal of the committal order, the appellant argues that the
    extradition judge made three errors:

1.

Failing to quash the search warrants;

2.

Applying the wrong test for disclosure;

3.

Making a disclosure ruling that resulted in an unfair hearing, because
    of inability to mount a s. 24(2) argument.

[13]

With
    respect to the application for judicial review of the surrender order, the
    appellant argues that the Ministers order ought to be quashed on the basis
    that:

1.

the
    Minister erred in concluding that surrender to the United States in the
    circumstances would not infringe s. 7 of the
Charter
;

2.

the Minister erred in concluding that reliance on uncharged conduct
    would not violate the rule of specialty in Article 12 of the
Treaty

on
    Extradition Between the Government of Canada and the Government of the United
    States of America
, 3 December 1971, Can. T.S. 1976 No. 3 (entered into
    force 2 March 1976) (the 
Treaty
);

3.

the Ministers order for surrender is unjust without assurances from the
    United States that it would not (a) use extrinsic evidence obtained from his
    computer as a basis for prosecution, and (b) subject the appellant to civil
    commitment proceedings with the potential for indefinite detention; and

4.

the Ministers order is an unjustified limit on the appellants s. 6(1)
Charter
right to remain in Canada.

D.

Analysis

(1)

The appeal of the second committal order

[14]

The
    appellant challenged the committal order on the basis that: (a) the search
    warrants were invalid and ought to have been quashed; (b) the committal judge
    applied the wrong legal test in deciding not to order further disclosure; and
    (c) the appellant faced an unfair hearing of whether the evidence obtained in
    violation of his
Charter
rights should be excluded under s. 24(2)
    because of the absence of additional disclosure.

(a)

The search warrants  reasonable and probable grounds

[15]

The
    appellant brought an application seeking to exclude the Canadian-gathered
    evidence from the committal proceedings. He argued that the search warrants
    were obtained in a manner that violated s. 8 of the
Charter
, and that
    both the detention of the seized items under s. 489.1 of the
Criminal Code
and the conduct of the police violated ss. 8, 9, and 10 of the
Charter
.
    He argued that the evidence should be excluded under s. 24(2) of the
Charter
.

[16]

First,
    the appellant argues that the ITOs did not establish reasonable and probable
    grounds to believe that evidence of the offence would be found at either the
    Stouffville or Chatham-Kent residences. The fruits of the searches, according
    to the appellant, were therefore obtained in a manner which infringed his s. 8
Charter
right to be free from unreasonable search or seizure.

[17]

The
    appellant argues that the reasoning of the panel in
Viscomi #1
 on
    the question of whether the evidence in the 2012 ROC was sufficient to support
    a committal for extradition  is also dispositive of whether search warrants
    could have issued based on the Stouffville and Chatham ITOs.

[18]

In
Viscomi #1
, this court held that the extradition judge erred by
    accepting that the ROC established that the IP address used to commit the
    offences was accessed from a device at the billing address for that account.
    This court held that the ROC did not indicate whether an IP address is for a
    particular subscriber, a particular device, or even whether it is limited to
    one particular residential location. The extradition judge further erred by
    drawing the inference that the account holder  Mr. Viscomi  was the user of
    the IP address at the time the offences were committed.

[19]

The
    appellant relies on
Viscomi #1
to argue that in this case, the
    information in the 2015 ITO mirrors that in the 2012 ROC, and suffers from the
    same shortcoming: it contains no information on what an IP address is, how it
    works, or any evidence that could identify from what physical location an IP
    address was used. The appellant argues that the inferences that he was the user
    of the IP address and that the IP address was accessed from the Stouffville
    location both fail.

[20]

The
    extradition judge rejected this argument. What was at issue before him on the
    application was not, as in
Viscomi #1
, whether there was sufficient
    evidence capable of linking Mr. Viscomit to the crime. The issue before him was
    whether the affiants in the ITOs demonstrated reasonable and probable grounds
    to believe that an offence had been committed, and that there was evidence with
    respect to the commission of the offence to be found at the places to be
    searched.

[21]

The
    extradition judge was satisfied that the ITOs provided reasonable grounds to
    believe each of these things. I agree.

[22]

I
    recognize that there was no information in the ITO as to whether this
    particular IP address, from this particular ISP, was static or fixed  that is,
    whether it was always assigned to the same account, or whether it was
    periodically re-assigned. However, the Stouffville ITO explained that IP
    addresses could be static or dynamic, and the ITO contained information about
    markedly similar offences committed by an individual using the usernames
    Johnny Wright and Jamie Paisley  the username associated with the Virginia
    offences  on various dates between December 6, 2011 and January 24, 2012,
    using the same IP address. Given the similar criminal conduct associated with
    this same IP address, it was reasonable for the issuing justice to conclude
    that the IP address was either a static address or a dynamic address that did
    not change with every login, and that the same person used the same IP address
    at the same physical location to commit both offences.

[23]

Furthermore,
    the issuing justice did not err in inferring that a subscribers billing
    address and the physical location from which the IP address was accessed would
    likely be the same. This was a logical and available inference. The decision of
    this Court in
Viscomi #1
does not hold otherwise.

[24]

There
    were therefore grounds upon which the issuing justice could have concluded that
    one or more devices used to commit the offence would be present at the
    Stouffville residence. On executing the Stouffville ITO, the only computer
    located had not been used since 2008. It therefore could not have been used to
    commit the offences. It was reasonable to believe that whatever device had been
    used to commit the offences was no longer there. The additional evidence
    referenced on the Chatham ITO, that the appellant had just moved to the
    Chatham-Kent address and had taken his laptop with him from the Stouffville
    residence, provided a basis for the issuing justice to conclude that evidence
    of the offence would be found on the laptop or other media storage devices or
    both, and that the laptop and any media storage devices would be found at the
    Chatham-Kent residence. The extradition judge did not err in concluding that
    the search warrants could reasonably have issued and that there was no
    violation of s.8 of the
Charter
on that basis.

(b)

Additional disclosure: the wrong test

[25]

The
    appellant brought an application for additional disclosure, seeking the
    contemporaneous notes and investigative reports of police officers involved in
    the Canadian investigation. The disclosure was sought to support a s. 8
    challenge to the issuance of the search warrants, as well as for
Charter
challenges to the police conduct in executing the search warrants, including
    under ss. 9 and 10(a), and in dealing with the seized material.

[26]

The
    appellant argued that he was entitled to the same level of disclosure as would
    be afforded on a
Charter

voir dire
within a domestic trial.
    The extradition judge, however, dismissed the application on the basis that
Stinchcombe
-like
    disclosure was not required on an extradition hearing, which does not determine
    guilt or innocence and is intended to move expeditiously. The extradition judge
    applied somewhat less stringent criteria for disclosure than articulated in
R.
    v. Larosa
(2002), 163 O.A.C. 108 (C.A.), holding that what was required
    was sufficient disclosure to permit the appellant to mount a meaningful
    challenge to the admissibility of the evidence.

[27]

The
    extradition judge held that given the disclosure the appellant was provided 
    including the ITOs, the notes of the affiant from the day of execution of the
    warrants, and the reports of the forensic examinations of the computers  he
    had more-than-adequate disclosure to permit him to challenge the admissibility
    of the Canadian-derived evidence based on issues properly raised at this
    committal stage of the extradition process. The extradition judge was
    satisfied that there [was] no realistic possibility that further disclosure
    could affect the outcome of the extradition application.

[28]

The
    appellant argues that in refusing the application, the extradition judge
    applied the wrong test for disclosure for an extradition hearing by relaxing
    the
Larosa
criteria such that the air of reality assessment was not
    made in relation to whether there had been a breach of the appellants
Charter
rights, but whether the further disclosure could affect the outcome of the
    extradition application.

[29]

The
    appellant argued that the appropriate test was articulated in dicta of Charron
    J. in
United States of America v. Anekwu
, 2009 SCC 41, [2009] 3 S.C.R.
    3, at para. 29, which states that Canadian-gathered evidence must comply with
    the Canadian rules of evidence, including the
Charter
, and

where
    there is an air of reality to
Charter
breaches alleged by the
    appellant, the extradition judge may order production of relevant materials.
    The appellant argues that in this case there is an air of reality to the
    alleged breaches, that evidence obtained thereby was relied on in the ROC, and the
    appellant is therefore entitled to disclosure of all materially relevant police
    disclosure that otherwise would be disclosed in a domestic criminal trial.

[30]

As
    the Crown argues, however, even where these factual preconditions are met and
    the applicant has demonstrated an air of reality to a
Charter
claim
    for the exclusion of evidence, the decision to order further disclosure remains
    discretionary: see
United States of America v. McAmmond
(2005), 192
    C.C.C. (3d) 149 (C.A.), at para. 31;
United States v. Kwok
, 2001 SCC
    18, [2001] 1 S.C.R. 532, at para. 102. The extradition judge was well-versed in
    the long and complex procedural history of this case. There is a high burden to
    overturning an extradition judge who is exercising a discretion as to how to
    best control the proceedings. Absent a clearly identifiable error in the
    application of the law, a material misrepresentation of the relevant evidence,
    or a result that is clearly wrong in the sense that it is not defensible on an
    application of the relevant law to the facts, this court is required to defer
    to the extradition judge: see
R. v. Mathurin
, 2015 ONCA 581, 127 O.R.
    (3d) 136, at para. 38. In my view, the approach taken by the extradition judge
    was one that was open to him. Based on his review of the evidence before him,
    and taking the submissions of the appellant at its highest, the extradition
    judge concluded that there was no path to the remedy sought by the appellant:
    the exclusion of evidence under s.24(2). On this basis, and given the expedited
    nature of extradition proceedings, I see no basis on which to interfere with
    the extradition judges exercise of discretion.

(c)

Did the ruling on disclosure application result in an unfair hearing?

[31]

As
    the extradition judge noted, because the information contained in the second
    ROC presented such a compelling case for extradition, everything turned on the
    admissibility of the Canadian gathered evidence. The appellant had advanced
    several
Charter
breaches, including breaches related to arbitrary
    detention without counsel, overseizure, unauthorized forensic searches of the
    laptop and external hard drive, and continued detention of seized items.

[32]

The
    appellant argued that he was deprived of the ability to access and test
    evidence necessary to establish the scope of the alleged
Charter
breaches, and to probe factors relevant to a s. 24(2) analysis that were known
    only to the police. Some of the records the appellant sought by way of
    additional disclosure, such as the handwritten notes made by the arresting
    officers, he ultimately obtained by way of freedom of information requests.
    Additionally, there was a significant delay in the return of digital media
    storage devices seized from the Chatham-Kent residence, well beyond the 90 days
    permitted in the detention order, which the appellant argued prejudiced him by
    facilitating the gathering and sending of the digital media storage devices to
    the American authorities pursuant to a
Mutual Legal Assistance in Criminal
    Matters Act
, R.S.C. 1985, c. 30 (4
th
Supp.) request.

[33]

The
    extradition judge rejected all of the
Charter
claims, with the
    exception of the claim of the ss. 9 and 10 breaches consequent to the
    appellants arbitrary detention for about two hours outside of the Chatham-Kent
    residence without access to counsel. For the purpose of the extradition judges
    s. 24(2) analysis, he assumed the section 9 and 10 breaches without deciding
    the issue. The extradition judge proceeded in this fashion because of his prior
    ruling on disclosure. The Crown denied that the appellant had been detained at
    all during the search of the Chatham-Kent residence, and brought a motion to
    have the appellants application dismissed on the basis that there was no
    admissible evidence to support it. The extradition judge dismissed the Crowns
    motion and assumed the breach, on the basis that given his decision to refuse
    to order additional disclosure, the appellant was not in an evidential position
    to argue the application.

[34]

The
    extradition judges key findings with respect to the s. 9 and 10 challenge are
    as follows:

I have concluded that there were no breaches of s. 8 of
    the
Charter.
I have held that I am prepared to presume
    that Mr. Viscomi was detained for a relatively brief period of time while his
    apartment in Chatham-Kent was being searched.  I have indicated that on
    the record before me, I cannot conclude that any caution that was given upon
    his detention was in
Charter-
compliant language.  I held,
    however, that any breaches of sections 9 and 10 of the
Charter
were
    not serious; that the police conducted themselves responsibly and in good
    faith; and that any statements that may have been made by Mr. Viscomi had no
    bearing whatsoever either on the search or on any other aspect of the
    investigation.

[35]

The
    extradition judge thus proceeded to a s. 24(2) analysis on the basis of a
    single assumed
Charter
breach that he found not to have been serious.

[36]

The
    appellant argued that the approach was unfair and in error.

[37]

I
    disagree. The extradition judge determined, based on his review of the record,
    that there was no reasonable prospect for success on the application; the
    evidence would not have been excluded on a s. 24(2) analysis. He was not
    required to do anything further. The presumed infringements were minimally
    serious, and their impact on the appellant was minimal. The appellant, who was
    of course present, chose not to adduce any evidence to the contrary. The
    evidence obtained was real, relevant, and reliable, and the societal interest
    in prosecution was high: [t]he allegations involve serious predatory
    cross-border sexual exploitation of children over the internet. The approach
    followed by the extradition judge is supported by
R. v. Kutynec
(1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-289, which states that where a
    summary of the anticipated evidence reveals no basis upon which the evidence
    could be excluded, then the trial judge need not enter into an evidentiary
    inquiry. There was no unfairness in the manner in which the extradition judge
    proceeded.

(2)

Judicial review of Ministers Order

[38]

After
    the appellant was ordered committed for extradition, he requested that the
    Minister of Justice exercise her discretion under s. 44(1)(a) of the
Extradition
    Act
, S.C. 1999, c. 18, on the basis that it would be unjust and oppressive
    to surrender him to the United States. He sought a discharge under s. 48 of the
Act
.

[39]

The
    Minister refused the request and ordered the appellants surrender, providing
    her reasons by way of a letter dated August 15, 2017. The appellant seeks
    judicial review of the Ministers decision.

[40]

He
    has articulated four grounds of review:

1.

Surrender to the United States would violate s. 7 of the Charter because
    the likely sentence the appellant would receive in the United States would
    shock the conscience of Canadians;

2.

Potential reliance by the United States on uncharged conduct (other
    than the charges for which the surrender order was obtained) to prosecute or
    sentence the appellant would violate the rule of specialty or Article 12 of the
Treaty
;

3.

An unconditional surrender order in the circumstances of potential
    indefinite civil detention would violate s. 7 of the Charter and the rule of
    specialty or Article 12 of the
Treaty
;

4.

Surrender to the United States would violate the appellants s. 6(1)
Charter
right to remain in Canada.

[41]

The
    Ministers decision to order surrender is subject to judicial review on a
    standard of reasonableness:
India v. Badesha
, 2017 SCC 44, [2017] 2
    S.C.R. 127, at para. 39. Provided that the Minister applies correct legal
    principles, her conclusions are entitled to deference unless they are
    unreasonable. A decision is not unreasonable simply because a court would have
    come to a different conclusion had it been the original decision-maker.

[42]

For
    the reasons that follow, I do not agree that that the Ministers decision is
    unreasonable.

(a)

Shock the conscience

[43]

As
    the Supreme Court explained in
United States v. Burns
, 2001 SCC 7,
    [2001] 1 S.C.R. 283, at para. 68, the question of whether an extradition would
    shock the conscience of Canadians is not an empirical question but a
    normative one. It duplicates the ultimate question: whether or not the
    extradition is in accordance with the principles of fundamental justice.

[44]

Case
    law has established that unless a potential treatment under the criminal
    justice system of the requesting state would be simply unacceptable or
    unjust or oppressive, a person sought for extradition must be answerable to
    the criminal law and procedure of the requesting state, notwithstanding that
    the law of the requesting state may be substantially different from our own:
Kindler
    v. Canada (Minister of Justice)
, [1991] 2 S.C.R. 779, at pp. 844-845,
    849-850;
Badesha
, at paras. 35, 40-43;
Burns
, at paras.
    72-73.

[45]

Disparities
    in sentencing between Canada and the requesting state  even significant
    disparities  do not provide, without more, a sufficient basis for judicial
    interference with a Ministers decision to surrender for extradition:
Lake
    v. Canada (Minister of Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at
    para. 48;
United States of America v. Jamieson
, [1996] 1 S.C.R. 465;
United
    States of America v. Whitley
(1994), 20 O.R. (3d) 794 (C.A.), affd [1996]
    1 S.C.R. 467;
Ross v. United States of America
(1994), 119 D.L.R. (4
th
)
    333 (B.C.C.A.), affd [1996] 1 S.C.R. 469. As this Court recently stated in
United
    States v. Lane
, 2017 ONCA 396, 349 C.C.C. (3d) 311, at para. 87, absent a
    potential death penalty or a sentence that would involve some form of torture,
    the mere fact that a sentence is more severe in the requesting state than in
    Canada would not make an extradition contrary to the principles of fundamental
    justice.

[46]

With
    respect to the appellants circumstances, the Minister took note that the
    appellant could potentially face a life sentence in the United States. But as
    the Minister also noted, the appellant was initially charged with corresponding
    Canadian offences that also carry a potential penalty of up to life
    imprisonment. In any event, the determination of whether a potential sentence
    is so severe as to be fundamentally unjust, is not established by a simple
    quantitative comparison of the relative lengths of foreign and domestic
    sentence ranges. Significantly, the appellant has not provided any case law in
    which the length of the foreign sentence was found to constitute such an
    extreme punishment that it infringed s. 7.

(b)

Reliance on uncharged conduct

[47]

As
    this Court observed in
Canada (Minister of Justice) v. Everard
(2005),
    74 O.R. (3d) 363, at para. 30, the rule of specialty, reflected in Article 12
    of the
Treaty
, precludes prosecution or punishment for any offence
    committed before surrender, other than the offence for which the accused was
    surrendered.

[48]

The
    appellants concern relates to evidence of extrinsic conduct summarized in the
    2015 ROC  evidence that did not relate to the commission of the offence for
    which extradition is sought, but of other, similar offences  taken from
    forensic examinations of the seized digital media by Canadian and US officials.
    The appellant argues that although committal was only ordered on the Virginia
    offences, the rule against specialty nevertheless requires that the Minister
    obtain assurances that the evidence of the extrinsic conduct not be used to
    prosecute or sentence the appellant.

[49]

The
    Minister concluded that the rule against specialty prohibits the requesting
    state from prosecuting for crimes other than which the extradition took place.
    Article 12 specifies that a person shall not be detained, tried or punished 
    for an offense other than that for which extradition has been granted. The
    Minister has taken the position that it would not violate the rule for the
    American prosecuting authorities to rely on uncharged conduct as an aggravating
    factor in sentencing on a conviction for the crimes for which the appellant is
    committed for extradition.

[50]

The
    Minister declined to seek assurances against reliance by the United States on
    evidence about other victims on sentencing, noting that Canadian courts are
    similarly entitled in sentencing to take into account surrounding circumstances
    that could support a separate charge:
Logan v. The Attorney General of
    Canada (on behalf of the United States of America)
, 2015 NBCA 59, 329
    C.C.C. (3d) 254, leave to appeal refused, [2015] S.C.C.A. No. 503, at para. 59;
    see also
United States of America v. Fordham
, 2005 BCCA 197, 196
    C.C.C. (3d) 39, at paras. 14-17. To decline to seek assurances in these
    circumstances is not unreasonable.

(c)

Possibility of civil commitment

[51]

The
    appellant submitted to the Minister that it would be unjust and oppressive to
    surrender him to the United States without assurances that he would not be
    subject to civil commitment proceedings in the US, which carry the potential
    for indefinite detention following the completion of the criminal proceedings
    and any related sentence on conviction. Civil commitment is an administrative
    process that allows for a sexually dangerous person to be held in custody for
    treatment upon completion of a criminal sentence. According to submissions made
    by the United States to the Minister, a person is considered sexually
    dangerous if suffering from a serious mental illness, abnormality or disorder
    and, as a result, would have serious difficulty refraining from sexually
    violent acts or child molestation if released.

[52]

The
    Minister considered in some detail the procedural protections afforded a person
    who is subject to civil commitment proceedings, and the high evidential burden
    placed on the government to justify civil commitment.

[53]

The
    Minister characterized civil commitment as similar in nature to Canadas mental
    health laws that were established to protect the community from harm while
    providing treatment for high risk violent sexual offenders, where certain
    strict criteria have been met. Accordingly, she concluded that the surrender
    of the appellant in circumstances where he could face the potential institution
    of civil commitment proceedings would not violate Article 12 of the
Treaty
or s. 7 of the
Charter
, and that it would therefore not be appropriate
    to seek assurances from the United States that would preclude it from
    instituting such proceedings.

[54]

The
    appellant maintains that seeking assurances from the United States would be
    appropriate, irrespective of how unlikely the Minister believes civil
    commitment proceedings would be.

[55]

This
    submission misunderstands the Ministers reasons for not seeking assurances.
    Although the Minister does state that it would be premature to conclude that
    civil commitment would be sought, the basis for the refusal to seek assurances
    is independent of the likelihood of civil commitment proceedings. The basis for
    the refusal was stated to be the Ministers satisfaction with the procedural
    protections afforded a person subject to the civil commitment process, and the
    similarity of civil commitment to involuntary committal under Canadian mental
    health laws. Both led to the conclusion that civil commitment proceedings,
    should they be brought, would not violate either s. 7 of the Charter or Article
    12 of the
Treaty
.

[56]

The
    appellant has not articulated a basis on which judicial review of this aspect
    of the Ministers decision could be granted.

(d)

The appellants right to remain in Canada under s. 6(1) of the
Charter

[57]

The
    appellant argues that the Minister erred in her determination that surrender
    would not violate the appellants s. 6(1)
Charter
right to remain in
    Canada.

[58]

The
    appellant argues the Minister erred in her analysis by giving undue weight to
    the factor that the impact of the offence was felt most strongly in the United
    States, where the complainants were located. He further argues the Minister
    erred in finding that the case against the appellant was initiated and
    developed in the United States, overlooking the critical importance of the
    Canadian-gathered evidence. Finally, he argues that the Minister improperly
    balanced the factors set out in
United States of America v. Cotroni
,
    [1989] 1 S.C.R. 469, which led to the erroneous conclusion that prosecution
    would not be as effective in Canada. Therefore, surrender would be contrary to
    s. 6(1).

[59]

The
    Ministers decision under s. 6(1) of the Charter is entitled to a high level of
    deference on judicial review and should only be interfered with in the clearest
    of cases:
Lane
, at para. 93;
United States of America v.
    Sriskandarajah
, 2012 SCC 70, [2012] 3 S.C.R. 609, at paras. 11, 22-23.

[60]

The
    Minister identified the following as some of the key factors driving the
    decision:

·

the impact of the alleged conduct was felt most strongly in the
    United States, where two American children were victimized in their home;

·

the United States initiated and developed the case against the
    appellant;

·

the majority of the evidence for prosecution is located in the
    United States, including testimony from the victims, their father and their
    sister; and

·

the United States has laid charges and is ready to proceed to
    trial.

[61]

There
    is no basis for the submission that the Ministers reasons place undue weight
    on where the impact of the offences was felt most strongly. The greatest
    emphasis, in the Ministers letter, was not placed on where the impact of the
    offence was felt, but rather on the importance of giving victims the
    opportunity to attend and/or participate in the court proceedings of the person
    alleged to have victimized them, including at the sentencing stage, and the
    age of the victims as it bore on their ability to participate.

[62]

In
    essence, the appellant invites this court to reweigh the Ministers
    consideration of the
Cotroni
factors. There is no basis upon which
    this court could do so. The Minister properly considered the factors relevant
    to whether the appellants extradition should be preferred to a domestic
    prosecution. The Minister made no error in concluding that extradition would
    not violate the appellants s. 6(1)
Charter
rights.

E.

Disposition

[63]

I would dismiss the appeal and the application for
    judicial review.

B.W. Miller J.A.
I agree. J.C. MacPherson J.A.



Paciocco J.A. (dissenting):

OVERVIEW

[64]

I
    agree with Miller J.A. that there is no basis for interfering in the Ministers
    decision to extradite Mr. Viscomi. I also agree that,
on
    the record before him
, the committal judge did not err in rejecting Mr.
    Viscomis s. 8 application.

[65]

I
    cannot agree, however, with the committal judges ruling denying Mr. Viscomi
    disclosure of relevant information relating to the
Charter
challenges
    he wished to bring to the Canadian-gathered evidence. In my view, despite the
    committal judges laudable efforts to be fair, even if he had the discretion to
    deny disclosure that he claimed, he applied the wrong disclosure test and
    exercised this discretion unreasonably. These errors undermined the ss. 8, 9
    and 10(b)
Charter
rulings that he ultimately made.

[66]

This
    is enough to resolve the appeal, but in my view there is a more fundamental
    problem with the committal judges decision. I am not persuaded that the law
    conferred the discretion to deny disclosure that the committal judge claimed.
    As I see it, once it is determined that there is an air of reality to a
Charter
challenge to the admissibility of Canadian-gathered evidence, which may
    lead to the exclusion of that evidence, a committal judge must order disclosure
    of information relevant to the admissibility of that evidence in the possession
    or control of the prosecuting authorities. The committal judge therefore erred
    in purporting to exercise discretion to deny relevant disclosure.

[67]

I
    am also of the view that the committal judges s. 24(2) analysis was not
    conducted correctly and was unfair. This, too, undermined the fairness of the
    committal hearing.

[68]

I
    would therefore allow the appeal, quash the committal order, and remit the
    matter back for re-hearing.

MATERIAL FACTS

[69]

I
    agree with Miller J.A.s recitation of the facts and history of this case. More
    must be said, however, about the committal judges reasoning related to the
    disclosure and s. 24(2) issues. I will also repeat material information that my
    colleague identified but that should be highlighted here, to give context to
    the analysis I am now undertaking.

[70]

Mr.
    Viscomi was initially charged in Canada on March 22, 2012, after two search
    warrants obtained in Canada were executed on March 21, 2012. One of those
    warrants was for the family home in Stouffville, Ontario where Mr. Viscomi had
    lived with this parents. The other warrant was for his student residence in
    Chatham-Kent, Ontario.

[71]

The
    March 22, 2012 Canadian charges against Mr. Viscomi were pending, when, on
    August 9, 2012, he was arrested on an extradition warrant issued at the request
    of the United States of America for the same criminal allegations. The next
    day, August 10, 2012, the Canadian charges were withdrawn to yield to the
    American extradition process.

[72]

Also
    on August 10, 2012, the Ontario Provincial Police applied for a search warrant
    to re-seize the evidence that had been seized on March 21, 2012. The sworn
    information used to secure the August 10, 2012 search warrant did not disclose
    that: Canadian charges had been laid, those charges were subsequently
    withdrawn, and the purpose of the requested search warrant was to support an
    extradition request rather than domestic charges.

[73]

During
    the four month period when Canadian charges were in place, Mr. Viscomi was
    provided with some disclosure relating to those charges, but further disclosure
    requests went unanswered. After the Canadian charges were withdrawn, Mr.
    Viscomi continued to seek the undisclosed information relating to the Canadian
    investigation, to defend himself against the American extradition request.

[74]

He
    brought an application for disclosure returnable on November 1, 2012, the date
    scheduled for the committal hearing. On October 11, 2012, his disclosure
    application was brought forward at the request of the Crown and denied. It
    failed because the United States was not relying on Canadian-gathered evidence
    in the record of the case it presented in support of Mr. Viscomis extradition
    [ROC #1], making disclosure about the Canadian-gathered evidence irrelevant.

[75]

The
    American extradition request based on ROC #1 ultimately failed. On June 30,
    2015, this court ruled in
United States v. Viscomi
, 2015 ONCA 484, 126
    O.R. (3d) 427, that the evidence in ROC #1 did not present the
prima facie
case
    required for the committal order.

[76]

Mr.
    Viscomi was immediately rearrested after the release of this courts ruling,
    when the United States made a renewed request for his extradition. On July 28,
    2015, Mr. Viscomi was served with a new record of the case [ROC #2], which did
    incorporate Canadian-gathered evidence, including evidence secured by the March
    21, 2012 search warrants and re-seized under the authority of the August 10,
    2012 search warrant.

[77]

On
    January 15, 2016, Mr. Viscomi brought his second disclosure application, the
    one now in contest before this court. In it, he sought the notes of Canadian
    police officers involved in searches and seizures and other dealings with the
    applicant on Canadian soil.

[78]

On
    March 17, 2016, the committal judge denied this application. This time it was
    not that the information sought for disclosure was irrelevant. Indeed, the
    committal judge concluded that the fate of the American extradition request
    would come down to whether the Canadian-derived evidence [in ROC #2]
    satisfies the rules of evidence under Canadian law in order to be admitted,
    as required by
Extradition Act
, S.C. 1999, c. 18, s. 32(2). The
    committal judge summed up his reasons for denying the application this way:

In these reasons, I conclude that Mr. Viscomi has already been
    provided with more-than-adequate disclosure to permit him to challenge the
    admissibility of the Canadian-derived evidence based on issues properly raised
    at this committal stage of the extradition process. I am satisfied that there
    is no realistic possibility that further disclosure could affect the outcome of
    the extradition application.

[79]

In
    coming to this conclusion, the committal judge applied a test for disclosure
    that he described as being somewhat less stringent than the [
R. v.
]
Larosa
criteria: (2002), 166 C.C.C. (3d) 449 (Ont. C.A.). The
Larosa
test he was referring to was applied by this court in determining whether
    evidence, relating to whether alleged misconduct by Canadian authorities
    warranted a stay of proceedings, was admissible on an extradition
appeal
. The committal judge accurately cited the test
    from para. 76 of
Larosa
:

·

The allegations of
Charter
-infringing misconduct must be
    capable of supporting the remedy sought;

·

There must be an air of reality to the allegations; and

·

It must be likely that the disclosure would be relevant to the
    allegations.

[80]

He
    then said that at the committal stage, his focus was on 
whether
    further disclosure is required

in order that Mr. Viscomis
    right to a fair determination of the committal hearing issues is protected
    (emphasis in original). He ultimately denied disclosure of evidence relating to
    the issuance of the 2012 search warrants:

In my opinion, Mr. Viscomi has more-than-adequate disclosure to
    allow him to advance his claim that his
Charter
rights were violated
    by the manner in which the search warrants were executed. I am satisfied that
    further disclosure will serve only to protract the proceedings and there is no
    air of reality to the assertion that further disclosure will assist Mr.
    Viscomi.

[81]

He
    gave similar explanations for denying the balance of the disclosure sought.

[82]

Subsequently,
    on September 1, 2016, the committal judge released his decision in Mr.
    Viscomis
Charter
challenge to the admissibility of Canadian-gathered
    evidence that was included in ROC #2. In that application, Mr. Viscomi raised
    claims relating to ss. 8, 9 and 10(b) of the
Charter
.

[83]

The
    committal judge rejected the s. 8 claim on the evidence before him. With
    respect to the alleged ss. 9 and 10(a)
Charter
violations, linked to
    the manner in which the March 21, 2012 Chatham-Kent search was conducted, Mr.
    Viscomi claimed he had been unlawfully detained during the search and denied
    his right to counsel. The committal Crown moved to have those claims dismissed
    summarily, arguing that there was no admissible evidence supporting them. The
    committal judge explained in his
Charter
ruling:

I declined to hear the Crowns motion, because I considered
    that in light of my earlier ruling limiting Mr. Viscomis disclosure to what
    was already in his possession, fairness required that I proceed with the
Charter
application on the
assumption

that
    Mr. Viscomi was indeed detained for a period of time and that he may not have
    received the appropriate
Charter
-mandated caution. In other words, I
    was concerned that Mr. Viscomi not be prejudiced in his ability to argue the
    sections 9 & 10 motions because he did not have every scrap of disclosure
    relating to those purported breaches. [Emphasis in original.]

[84]

The
    committal judge also went on to note that there was 
some
support [in the evidence] for the assertion that Mr. Viscomi was detained for
    about two hours around the time of the search of his apartment in Chatham-Kent
    (emphasis in original). That support came, in part, from two sets of officers
    notes that the committal judge had refused to order be disclosed, but that Mr.
    Viscomi secured with an access to information request.

[85]

The
    committal judge then went on to say:

There is nothing in any of the material before me on this
Charter
application to suggest that Mr. Viscomi was treated disrespectfully or
    aggressively during the period of his detention. Mr. Viscomi was entitled to
    adduce evidence on this application but has not done so. I will therefore
    proceed on the assumption that his detention was not accompanied by otherwise
    inappropriate conduct by the police.

[86]

He
    then said:

Assuming that Mr. Viscomi was arbitrarily detained contrary to
    s. 9 of the
Charter
, and assuming that his s. 10 rights were violated,
    I am satisfied that the
Charter
breaches were not serious and that the
    officers acted in good faith in the manner in which they conducted themselves.

[87]

When
    the committal judge balanced the factors in the Grant test, he concluded that
    the evidence should not be excluded despite the ss. 9 and 10(b) breaches that
    he found.

ISSUES

[88]

As
    I see it, four issues arise for consideration from the arguments Mr. Viscomi
    made and from my colleagues decision:

A.

Did the committal
    judge apply the correct disclosure test?

B.

Did the committal
    judge exercise his discretion fairly?

C.

Did the committal
    judge have the discretion to deny disclosure?

D.

Did the disclosure
    decision render the committal hearing unfair?

ANALYSIS

A.

THE COMMITTAL JUDGE DID NOT APPLY THE CORRECT DISCLOSURE TEST

[89]

For
    reasons I will explain, the committal judge should have applied the
Larosa
test
    to determine whether to disclose the information Mr. Viscomi was seeking. The
    committal judge did attempt to apply a test that was, in his words, somewhat
    less stringent than the
Larosa
criteria. If the committal judge had
    done so successfully, Mr. Viscomi would not be in a position to complain about
    the test used. In fact, the criteria the committal judge applied were stricter
    than the
Larosa
test. He therefore erred in law in the test he used.

[90]

As
    indicated,
Larosa
is not, strictly speaking, a case about committal
    proceedings. It sets out a test for the admission of evidence relating to an
    alleged
Charter
violation on an extradition appeal. In appeals, the
    reception of new evidence is typically tightly controlled. I am nonetheless
    satisfied that the
Larosa
test does apply at the extradition committal
    stage as well. This court has used it in evaluating a disclosure request
    relating to
Charter
allegations that state misconduct would render
    committal unfair:
United States of America v. Prudenza
(2006), 213
    C.C.C. (3d) 312, at para. 22, and see
United States v. Wong
, 2017 BCCA
    109, 346 C.C.C. (3d) 1, at para. 23. It has also been applied by committal
    judges considering disclosure requests relating to the
Charter
admissibility
    of evidence relied upon to support committal: see
United States v. Cao
,
    [2009] O.J. No. 4987 (S.C.), at paras. 33-34, and
United States of America
    v. Amadi
, 2017 ONSC 3446, at paras. 40-41. The
Larosa
test
    commends itself.

[91]

First,
    the imposition of an air of reality criterion to disclosure in extradition
    cases is well established. Extradition is intended to be an expedited process,
    designed to keep expenses to a minimum and ensure prompt compliance with
    Canadian international obligations:
United States of America v. Dynar
,
    [1997] 2 S.C.R. 462, at para. 122. Therefore, judicial intervention must be
    limited to cases of real substance:
Canada v. Schmidt
, [1987] 1
    S.C.R. 500, at p. 523, cited in
Dynar
, at para. 125. A committal judge
    is not obliged to entertain or make disclosure relating to
Charter
challenges to evidence, unless those challenges have an air of reality:
United
    States of America v. Anekwu
, 2009 SCC 41, [2009] 3 S.C.R. 3, at paras. 31,
    33.

[92]

Air
    of reality standards are meant to ensure that the issue a party seeks to have
    considered is tenable:
R v. Durette
(1992), 72 C.C.C. (3d) 421 (Ont.
    C.A.), at p. 437, revd on different grounds, [1994] 1 S.C.R. 469. In the
    extradition disclosure context, the air of reality test requires that there be
    an evidentiary foundation demonstrating a realistic possibility that the
    alleged
Charter
breach can be substantiated by disclosure:
Larosa
,
    at para. 78, and see
United States v. Tollman
, [2006] O.J. No. 5588,
    at para. 21 (S.C.). In
Dynar
,

since there was no air of
    reality to Mr. Dynars contention that wiretap evidence obtained in the United
    States was Canadian-gathered evidence  a necessary condition to the
Charter
breach alleged  he was not entitled to the disclosure he was demanding,
    pertaining to the relationship between Canadian and American authorities: at
    para. 141.

[93]

In
Dynar
, Cory and Iacobucci JJ. spoke only about the need for the
Charter
breach allegations to have an air of reality to warrant disclosure at a
    committal proceeding. They did not mention the other two
Larosa
criteria,
    namely, that the allegations [of
Charter
-infringing misconduct] must
    be capable of supporting the remedy sought and that it must be likely that
    the [disclosure] sought would be relevant to the allegations:
Larosa
,
    at para. 76.

[94]

In
    my view, these latter two
Larosa
criteria are nonetheless also
    required. The
Dynar
court did not mention them because they are
    obvious, and did not arise on the facts of that case. Clearly, a request for
    disclosure of evidence that is not likely to be relevant lacks merit, as does a
    request for disclosure in support of a
Charter
allegation incapable of
    supporting the remedy sought  in this case, the exclusion of the evidence.

[95]

The
Larosa
test therefore applies to disclosure requests related to
Charter
breaches raised in committal proceedings. As I say, in spite of the
    committal judges attempt to soften the
Larosa
test at the committal
    stage, the test he applied was in fact stricter than the
Larosa
test.
    Instead of asking whether there was an air of reality to the allegations  in
    this case the alleged
Charter
breaches  he asked the more demanding
    question of whether there is [an] air of reality to the assertion
that further disclosure will assist Mr. Viscomi

    (emphasis added).

[96]

In
    other words, instead of assessing whether there was an air of reality to the
issue
that disclosure was sought to enlighten, he asked
    whether the
disclosure
sought would provide
    additional assistance on that issue.

[97]

The
    standard imposed by the committal judge is a much more difficult standard to
    meet than the air of reality criterion that forms part of the
Larosa
test.
    This is for the simple reason that a party seeking to satisfy the criterion he
    employed is apt to run headlong into the catch-22 of being unable to
    demonstrate how information they have never seen would impact their
Charter
claim. Elsewhere, the law protects those whose liberty is at stake from
    losing access to potentially useful disclosure, even though they cannot
    demonstrate its value.

[98]

In
R. v. Stinchcombe
disclosure cases, if the Crown withholds information
    claiming it to be clearly irrelevant, the dispute is resolved by judicial
    inspection of the contentious material: [1991] 3 S.C.R. 326, at pp. 340-341.
    Where a conviction appeal is based on an alleged
Stinchcombe
violation,
    no remedy will be forthcoming on appeal unless the improperly withheld
    information impaired the right to full answer and defence, but this, too, is
    determined by judicial inspection:
R. v. Dixon
, [1998] 1 S.C.R. 244,
    at

para 36. The accused person is not expected, sight unseen, to
    demonstrate the contribution that the target information would be apt to make.

[99]

Third
    party records in a prosecution for a non-sexual offence must also be inspected
    by the trial judge for their potential probative value on a mere showing of
    logical relevance:
R. v. OConnor
, [1995] 4 S.C.R. 411, at para. 22.
    Even where disclosure is sought under the
R. v. Mills
regime where, by
    statute, consideration of probative value is required before judicial
    inspection, the Supreme Court of Canada has directed that in order to avoid the
    inherent catch-22 risk, [w]here there is a danger that the accuseds right
    to make full answer and defence will be violated, the trial judge should err on
    the side of production to the court: [1999] 3 S.C.R. 668, at para 137.

[100]

I am mindful that
Stinchcombe
or even
OConnor
or
Mills
disclosure standards do not
    apply at extradition proceedings, but that does not mean that their underlying
    principles are entirely immaterial here. In any context, to demand as a
    precondition that the party seeking disclosure must show that the further
    disclosure will assist will, in many if not most cases, predestine meritorious
    applications to failure.

[101]

The amped up standard
    applied by the committal judge outstrips the test articulated in
Larosa
.
    Nor is it supported by the air of reality conception identified in
Dynar
,
    where the court asks only whether there is an air of reality to the
    contention that [the subject] could establish a
Charter
violation by
    the Canadian officials: at para. 141.

[102]

In my view, the
    committal judge erred by applying the wrong disclosure test, since this test
    was stricter than the law requires.

B.

THE COMMITTAL JUDGE DID NOT EXERCISE HIS DISCRETION FAIRLY

[103]

In my view, even if a
    committal judge has discretion to deny disclosure of information relevant to
    the
Charter
admissibility of Canadian-gathered evidence that is being
    relied upon by the requesting state, that discretion was not exercised fairly
    in this case.

[104]

This unfortunate
    outcome, unintentionally produced by a committal judge who was clearly trying
    to be fair, is easily demonstrated by what occurred during the subsequent
Charter
    voir dire
. During that
Charter voir dire
,

the committal
    judge recognized that because of his disclosure ruling, fairness required that
    [he] proceed  on the
assumption
that Mr. Viscomi
    was indeed detained for a period of time and that he may not have received the
    appropriate
Charter
-mandated caution (emphasis in original).

[105]

In my view, the
    committal judges felt need to assume
Charter
violations, because his
    disclosure ruling deprived Mr. Viscomi of the means to attempt to prove these
    breaches with evidence, demonstrates that the committal judge did not
    successfully achieve even the fairness standard he had identified.
    Specifically, he sought to arrive at a fair disclosure ruling by asking whether
    [Mr. Viscomi] has enough ammunition to meaningfully advance his arguments,
    only to discover during the
Charter
motion that as a result of the
    disclosure ruling, fairness required that Mr. Viscomis application be
    supplemented by assumptions.

[106]

I appreciate that, in
    one sense, assuming
Charter
breaches is a generosity. Had the issue
    been fully litigated even with the benefit of full disclosure, Mr. Viscomi may
    not have been able to establish any breach at all. On the other hand, with the
    benefit of more complete disclosure, Mr. Viscomi may have been able to
    establish different and more serious breaches, committed in more aggravated
    circumstances than those assumed. This would have made exclusion more likely.
    The point is that an assumed breach cannot fairly substitute for disclosure.

[107]

This is why I am of
    the view that, at the very least, once the committal judge realized that he had
    not made sufficient disclosure for the issues to be argued meaningfully on the
    evidence, he should have revisited his disclosure ruling so that he could order
    the disclosure that would meet the fairness standard he imposed.

[108]

Even leaving this
    aside, it is my view that the enough ammunition standard, used by the
    committal judge to limit the disclosure Mr. Viscomi received, was contrary to
    principle.

[109]

First, it is
    inherently arbitrary, as there is no meaningful measure that can be applied to
    decide when enough is enough. One of the realities that this standard fails to
    accommodate is that accumulated evidence is often stronger than less evidence.
    More information will often be the difference between success and failure.
    Applying an enough ammunition standard to deny the disclosure of information,
    sight unseen, can arbitrarily halt the accumulation of evidence before the true
    weight of a claim can become known.

[110]

Second, the enough
    ammunition standard accepts that the ability to argue meaningfully, but less
    effectively than possible, is an appropriate measure of fairness. In my view,
    it is not. As I see it, the purpose of disclosure is not to facilitate a threshold
    level of argument. Its function is to promote correct outcomes in an
    adversarial setting by sharing information the Crown controls or possesses with
    those whose liberty it seeks to deprive. In my view, denying what could prove
    to be decisive and relevant disclosure because the meaningful argument
    threshold has been met does little to advance the underlying purpose in making
    disclosure.

[111]

The committal judge
    derived the enough ammunition standard from the general proposition he
    identified: namely, that fairness in the extradition process is achieved by
    ensuring meaningful scrutiny of the Canadian-gathered evidence. With respect,
    the authorities he cited in support of that proposition do not adopt that
    measure as a general principle of fairness, and have nothing to do with an
    appropriate disclosure standard.

[112]

Anekwu
, at
    paras. 21 and 28, speaks, in turn, of the committal judges obligation to
    scrutinize Canadian-gathered evidence for its admissibility, and generally
    about how procedural safeguards at a committal hearing need not match those at
    a trial. The passages cited from
Dynar
, at paras. 122-124, also note
    the difference in procedural safeguards between a committal hearing and trial,
    and speak to the application of the
Charter
to Canadian state actors.
    The other authorities cited 
United States of America v. Ferras
, 2006
    SCC 33, [2006] 2 S.C.R. 77, at para. 29, and
France v. Diab
, 2014 ONCA
    374, 312 C.C.C. (3d) 471, at para. 106  are about a committal judges
    responsibilities relating to the reliability of the evidence offered. In my
    view, these cases do not purport to adopt a meaningful scrutiny standard as
    the measure of fairness in extradition cases generally, or in the disclosure
    context where the admissibility of Canadian-gathered evidence is at issue.

[113]

In summary, the
    committal judges recognition that given the disclosure order he made, fairness
    required that he assume
Charter
breaches, demonstrates on its own that
    if he had the discretion to deny disclosure, he did not exercise that
    discretion fairly. In my view, the exercise of his discretion was also unfair
    because he erred in principle by using an enough ammunition standard to
    determine whether to order further disclosure.

C.

THE COMMITTAL JUDGE DID NOT HAVE THE DISCRETION TO DENY DISCLOSURE

[114]

More profoundly, in my
    view, the committal judges understanding that he had discretion to deny
    disclosure of information that satisfies the
Larosa
test is incorrect.
    If information is likely to be relevant to a
Charter
challenge to the
    admissibility of Canadian-gathered evidence, and that
Charter
challenge
    has an air of reality and is capable of resulting in the exclusion of evidence,
    that information must be disclosed.

[115]

To be clear, there is
    discretion related to disclosure of information relevant to
Charter
violations alleged in committal proceedings, but such discretion does not apply
    here. That discretion entitles a committal judge to
broaden
the scope of a committal hearing by permitting evidence that is immaterial to
    the outcome of the committal hearing to be presented, and to order disclosure
    of information that is relevant to that broadened issue. In my view, the
    committal judge erred in purporting to apply this discretion to information in
    this case. Here, the information was likely to be relevant to an issue that he had
    to resolve to determine whether the requesting state had a
prima facie
case:
    namely, the
Charter
admissibility of Canadian-gathered evidence the
    requesting state relied upon. Case law dealing with the discretion to broaden
    the scope of a committal hearing did not apply.

[116]

This distinction is
    as subtle as it is critical, so I will begin in the beginning, with the scope
    of an extradition committal hearing.

[117]

Whereas domestic
    trials engage all issues of guilt or innocence and finally determine the
    charges alleged, committal proceedings are concerned only with whether the
    requesting state has demonstrated a
prima facie
case that the
    individual has committed alleged acts in the foreign state that would
    constitute criminal conduct in Canada, thereby warranting a trial in the
    foreign state:
Dynar
, at para. 121. Disclosure rights in extradition
    cases are therefore narrower, constrained by the limited function of the
    extradition judge under the [
Extradition Act
], and by the need to
    avoid imposing Canadian notions of procedural fairness on foreign authorities:
Dynar
, at para. 133.

[118]

The constrained
    function of the committal judge  determining whether there is a
prima
    facie
case  makes it unnecessary for the subject to receive disclosure of
    all relevant, unprivileged information in the possession and control of the
    prosecuting Crown, as occurs in a domestic criminal prosecution. Much of that
    information will have nothing to do with whether the prosecuting Crown has a
prima
    facie
case.

[119]

Since it is relevant
    at a committal proceeding, however, the subject is entitled to material that
    the requesting state is relying upon to establish that
prima facie
case:
Dynar
, at para. 134, citing
United States of America v. Whitley
(1994),
    94 C.C.C. (3d) 99 (Ont. C.A.), affd [1996] 1 S.C.R. 467.

[120]

What is also relevant
    at the committal proceeding is information about the admissibility of
    Canadian-gathered evidence that the requesting state relies upon to establish
    the
prima facie
case. Information about evidence that has not been
    gathered in Canada is generally irrelevant and need not be disclosed because,
    in order to avoid imposing Canadian notions of procedural fairness on foreign
    authorities, such evidence can be considered by the committal judge even if it
    does not meet Canadian rules of admissibility. Canadian-gathered evidence is
    different. The
Extradition Act
, s. 32(2) provides:

Exception  Canadian Evidence

(2)
Evidence gathered in Canada must satisfy
    the rules of evidence under Canadian law in order to be admitted.

[121]

This rule would be
    pointless if the committal judge and the parties were unarmed with sufficient
    information about Canadian-gathered evidence to determine its admissibility. As
    a result, in
Anekwu
, at para. 29, Charron J. said that the record of
    the case should contain sufficient information to enable the person sought and
    the extradition judge to ascertain whether any item of evidence has been
    gathered in Canada and, when that is the case, some information should also be
    provided on how it was obtained.

[122]

In
Anekwu
,
    for example, the record of the case included sufficient information to
    ascertain that, notwithstanding the Canadian hearsay rule, the
    Canadian-gathered information relied upon by the requesting state was
    comprised of corporate records, mailbox records, bank records, first-hand
    police surveillance evidence and an immigration photograph of Mr. Anekwu, all
    of which would have been admissible if the actual records were filed: at para.
    32. Where the record of the case does not disclose sufficient information to
    ascertain the admissibility of Canadian-gathered evidence, disclosure or even
    discovery by compelling material witnesses to appear for examination or cross-examination
    can fill that need:
Anekwu
, at para. 31.

[123]

Just as
    Canadian-gathered hearsay evidence may be inadmissible, evidence relied upon by
    the requesting state that was obtained by Canadian authorities in a manner that
    violates the
Charter
may too be inadmissible. As a result, a committal
    judge has jurisdiction to entertain an application under s. 24(2) of the
Charter
for the exclusion of evidence gathered by Canadian authorities in
    contravention of the
Charter
, and to order disclosure relating to such
    applications:
Anekwu
,

at para. 29.

[124]

However, there are
    other kinds of
Charter
issues that can arise in extradition
    proceedings that are unrelated to whether committal should be ordered. There is
    no right to disclosure relating to such
Charter
applications. In
United
    States of America v. Kwok
, 2001 SCC 18, [2001] 1 S.C.R. 532, for example,
    Mr. Kwok argued that his extradition to the United States would violate his
    mobility rights under s. 6 of the
Charter
. The committal judge refused
    to order disclosure relating to that
Charter
challenge. Arbour J., for
    the Court, upheld that decision because
Charter
compliance with s. 6
    is unrelated to the function of the committal judge.

[125]

And here is where the
    discretion comes in. Arbour J. accepted, at para. 74, that since a s. 6
Charter
challenge may be tenable before the Minister at the surrender phase of the
    extradition proceedings, on efficiency grounds, it has been recognized that
    extradition judges could have the
discretion
to
    hear, without deciding, evidence on alleged s. 6
Charter
violations
    when the allegations hold an air of reality (emphasis in original). She said
    that she would not want to preclude the exercise of this residual discretion
    of the part of the extradition judge to allow evidence on some of these [non-admissibility
Charter
challenges] in a proper case, and to order disclosure
    accordingly: at para. 102.

[126]

In my view, the heart
    of her decision on the state of the law is found in paras. 100 and 101:

The extradition judge may only order the production of materials
    relevant to the issues properly raised at the committal stage of the process,
    subject to his or her discretion to expand the scope of that hearing to allow
    the parties to establish the factual basis for a subsequent
Charter
challenge,
    when it is expedient to do so, including obviously, when there is at least an
    air of reality to the
Charter
claims. Requests for disclosure of
    materials related to issues which properly belong to the executive phase of
    extradition, and to the judicial review thereof, have no independent relevance
    before the [committal] judge and are subsumed in his or her discretion to hear
    evidence related to such issues.

In this case, the appellant was entitled to know the case
    against him, including the materials upon which the United States relied upon
    to establish a
prima facie
case. Since the Requesting State was not
    relying upon materials in the possession of Canadian authorities, and in the
    absence of any indication of bad faith or improper motives on the part of
    prosecuting authorities, there was no obligation to provide further disclosure
    of materials requested. [Citations omitted.]

[127]

It is clear, in my
    view, that at no point did Arbour J. speak of discretion to disclose
    information relevant to issues properly raised at the committal stage, such as
    the
Charter
admissibility of Canadian-gathered evidence that the
    requesting state relies upon. When she used the word may in the opening
    sentence of para. 100, she was describing the authority to order disclosure 
    what a committal judge is empowered to or may do. The discretion she spoke
    about was discretion to expand the scope of the committal hearing to receive
    evidence about
Charter
challenges relating to issues not properly
    raised at the committal stage, and to order disclosure accordingly. She was not
    speaking of discretion to refuse disclosure of relevant evidence related to the
    issues which are properly before the committal judge.

[128]

Indeed, when she
    referred, at para. 101, to disclosure relating to the issues properly before the
    committal judge, she spoke in terms of what the appellant was
entitled to know
 (emphasis added). She explained that
    since the information sought by Mr. Kwok had no independent relevance before
    the committal judge there was no
obligation
to
    provide further disclosure of the materials requested (emphasis added). A few
    paragraphs later, speaking of Ministerial disclosure obligations, she commented
    at para. 106, the disclosure requests made by the appellant to the Minister
    did not bear on issues sufficiently relevant to the surrender decision, or to
    the constitutional rights of the appellant in that process, to require
compulsory disclosure
 (emphasis added). In my view, she
    was clearly expressing the view that where there is an air of reality to
Charter
claims related to issues properly belonging to the committal judge,
    disclosure is obligatory, not discretionary.

[129]

Similarly, in
Dynar
,
    Cory and Iacobucci JJ. explained that no additional disclosure was
required
 (emphasis added), because it did not relate to
    the
prima facie
case: at para. 135. In
United States v. Costanzo
,
    2009 BCCA 120, 243 C.C.C. (3d) 242, leave to appeal refused, [2009] S.C.C.A.
    No. 196, at paras. 26-27, Rowles J.A. spoke of the obligation to provide
    additional disclosure that arises where an air of reality exists for a
Charter
claim that pertain[s] directly to the circumscribed issues relevant at
    the committal stage. In
United States of America v. Fafalios
, 2010
    ONSC 1994, affd on other grounds, 2012 ONCA 365, at paras. 24-26, Backhouse J.
    ordered that the applicants were entitled to full disclosure after finding an
    air of reality had been established for a
Charter
challenge related to
    the admissibility of Canadian-gathered evidence relied upon by the requesting
    state. In
United States of America v Isa
, 2014 ABCA 256, leave to
    appeal refused, [2014] S.C.C.A. No. 445, at para. 39, in a
per curiam
opinion the Alberta Court of Appeal determined that Mr. Isa was entitled to
    disclosure of all materials after demonstrating an air of reality to an
    allegation of torture relating to US-gathered evidence relied upon in the
    record of the case.

[130]

None of these
    decisions speak of a discretion relating to disclosure and all proceed on the
    basis that where there is an air of reality to a
Charter
violation
    relevant before a committal judge, disclosure must be made. They did not
    consider the
Kwok
discretion, in my view, because that discretion does
    not apply in these circumstances. Fittingly, the
Kwok
discretion was
    subsequently described in
M.M. v. United States of America
, 2015 SCC
    62, [2015] 3 S.C.R. 973, at para. 79, as the limited discretion exceptionally
    to admit evidence that is not, strictly speaking, relevant to the committal
    inquiry but will be relevant to the Ministers task at the surrender stage of
    the proceedings, and includes whether to order the disclosure of evidence
    relevant to those claims. That is not the situation that the committal judge
    was addressing in this case.

[131]

In my view, compulsory
    disclosure at the committal hearing of information relating to
Charter
challenges
    that must be decided to determine committal makes perfect sense where the
Larosa
test is met. The discretion to deny such disclosure does not.

[132]

I have already
    advanced the proposition that the discretion to deny relevant disclosure has
    the potential to operate arbitrarily, and to undercut meritorious
Charter
claims.
    I will begin with that in mind.

[133]

The Supreme Court of
    Canada has recognized that the extradition hearing in Canada has to conform to
    the requirements of the
Charter
:
United States of America v. Cobb
,
    2001 SCC 19, [2001] 1 S.C.R. 587, at para. 24. It bears consideration that
Charter
exclusion under s. 24(2) preserves the repute of the administration of justice.
    In my view, the fortunes of that reputation should not be resolved on
    incomplete information.

[134]

Conformity with the
    requirements of the
Charter
includes the entitlement of accused persons
    to challenge how the evidence being used against them was obtained. That is why
    committal judges have the jurisdiction to entertain
Charter
applications
    for exclusion. The committal hearing is the only opportunity that a
Charter
claimant will have to vindicate those rights. That sole chance should not
    be weakened by limited access to relevant information that is available and in
    the custody or possession of the Crown that is prosecuting the extradition.

[135]

In that regard, the
    observation of Sopinka J. in
Stinchcombe
, at p. 333, is germane: the
    fruits of the investigation which are in the possession of counsel for the
    Crown are not the property of the Crown for use in securing a conviction but
    the property of the public to be used to ensure that justice is done. The same
    holds true, in my view, of Canadian-gathered information relevant in securing
    committal.

[136]

Indeed, it is the
    immediate availability of such information, and its possession by the
    prosecuting Crown agent, that distinguishes disclosure from the kinds of
    discovery requests where discretion does have a role to play, such as
    cross-examining an affiant on a search warrant information. Unless the
    information is protected, if the prosecuting Crown has possession or control of
    information likely relevant to a viable application for
Charter
exclusion,
    so too should the party whose liberty interest is at stake. The obligation of
    state agents to share that information should not be subjected to the vagaries
    of discretion.

[137]

The important
    admonition in
Dynar
that, in the interests of reciprocity and comity,
    less complex and extensive extradition proceedings are required, is not served
    by discretion to deny relevant disclosure. There is no reason to believe that
    requiring complete disclosure of information relevant to the admissibility of
    Canadian-gathered evidence the requesting state relies upon will cause delays.
    One of the driving premises in
Stinchcombe
for the adoption of a
    disclosure regime was the compelling evidence that much time would be saved
    and therefore delays reduced: at p. 334. Disclosure can demonstrate that
    issues are not viable, and promote settlement. The same efficiencies would
    apply to
Charter
challenges in extradition proceedings.

[138]

Indeed, the discretion
    contemplated by the committal judge in this case is more apt to prolong the
    proceedings. Granting the committal judge discretion to deny relevant
    disclosure removes the bright line by which disclosure compliance can be
    measured by police officers and prosecutors. A corollary of granting the
    committal judge discretion to deny relevant disclosure is an invitation to
    police officers and prosecutors to exercise their discretion about where they
    think the line should be drawn. This can only promote litigation and unsettle
    the efficiency of extradition proceedings with needless disclosure
    applications.

[139]

Nor does the
    compulsory disclosure of information relevant to the outcome of committal
    proceedings contradict the observation in
Dynar
that trial disclosure
    practices should not be transplanted into the extradition context. There is a
    world of difference between the
Stinchcombe
disclosure rules and the
    extradition disclosure regime the Supreme Court of Canada endorsed in
Kwok
.
    In a domestic trial, the fruits of the entire criminal investigation in the
    hands of the prosecuting Crown must be handed over unless clearly irrelevant or
    privileged. By contrast, the disclosure regime I am describing requires
    disclosure only of information bearing on
Charter
challenges that must
    be decided to determine committal. Even then, disclosure is required only where
    there is a showing that the information is likely to be relevant to that
Charter
claim, and where that claim has both an air of reality and the potential
    to result in the exclusion of the evidence.

[140]

In my view, there is
    no Supreme Court of Canada authority that has moved from the sensible regime
    described by Arbour J. in
Kwok
. I do not believe that Charron J.s
    comment in
Anekwu
, at para. 29, that the extradition judge may order
    the production of materials relevant to any issue properly raised at the
    committal stage of the process where there is an air of reality, can fairly be
    read as having done so. Charron J. was simply responding to Mr. Akenwus
    argument that, given the difficulties in acquiring information needed to
    establish
Charter
breaches in extradition proceedings, the requesting
    state should have to prove that Canadian-gathered evidence was gathered in
    compliance with the
Charter.
She rejected the underlying premise of
    Mr. Akenwus argument by listing the various ways that the required information
    could be gathered, one of which may be through a committal judge ordering
    disclosure. She was not, in that single comment, while speaking on an unrelated
    issue, purporting to reconfigure the discretion to deny disclosure that had
    been addressed in
Kwok
.

[141]

In
United States
    of America v. McAmmond
(2005), 192 C.C.C. (3d) 149 (Ont. C.A.), at para.
    31, Laskin J.A. did say that [e]ven where there may be an air of reality to
    the [
Charter
] complaints alleged, it remains a matter of the proper
    exercise of discretion on the part of the extradition judge. If applied
    generally, that
dictum
does have a breadth that outstrips what
Kwok
said
.
When Laskin J.A. said this, however, he was not dealing
    with a
Charter
challenge to the admissibility of Canadian-gathered
    evidence, but with matters extraneous to the issues on the extradition hearing
    itself, where the
Kwok
discretion does apply: at para. 21. I do not
    read
McAmmond
as being inconsistent with what I am now saying.

[142]

My colleague relies
    upon this courts decision in
United States v. Mathurin
, 2015 ONCA
    581,

328 C.C.C. (3d) 85, to support the committal judges discretion
    to deny disclosure. In that case, Mr. Mathurin appealed his committal on
    several grounds, including that the trial judge erred by failing to grant
    disclosure relating to several
Charter
breaches that could have
    affected the admissibility of Canadian-gathered evidence. In her analysis for
    the Court, Benotto J.A. did quote the passage from
McAmmond
, at para.
    31, and expressed the usual caution about the need to defer to discretionary
    decisions. However, that discretion was not relied upon to dismiss Mr.
    Mathurins appeal. With one exception, his disclosure ground of appeal was
    dismissed because none of his
Charter
claims met the
Larosa
test:
    they all lacked an air of reality. The remaining disclosure request was sent
    back to the committal judge for reconsideration, because the committal judge
    had denied disclosure in the mistaken belief that the conduct it related to
    would not violate the
Charter.
I do not read
Mathurin
as
    having settled the question of whether a committal judge has discretion to deny
    disclosure of information relating to the admissibility of Canadian-gathered
    evidence that the requesting state relies upon, where the
Larosa
test
    has been met.

[143]

For the reasons I have
    given, it is my view that such discretion does not exist. With respect, the
    committal judge erred by relying on discretion he did not have to deny Mr.
    Viscomis disclosure claims.

D.

THE DISCLOSURE DECISION RENDERED THE COMMITTAL HEARING UNFAIR

[144]

In my view, the
    committal judges disclosure decision rendered the committal hearing unfair by
    undermining his s. 24(2) decision. As indicated, after denying Mr. Viscomis
    disclosure requests, the committal judge proceeded based on assumed breaches of
    Mr. Viscomis ss. 9 and 10(b) rights. This was done in the spirit of fairness,
    but it did not achieve that result. Section 24(2) requires a judge to consider
    whether the admission of evidence in the proceedings would bring the
    administration of justice into disrepute having regard to all the
    circumstances. That mandate cannot be discharged without identifying all of
    the actual circumstances of a
Charter
breach.

[145]

In my view, the
    assumptions that the committal judge made were also unfair. If a
Charter
application
    is going to be resolved without a full evidentiary record, the
Charter
application
    should be taken at its highest. Doing so removes the unfairness of rejecting it
    without seeing the actual evidence. In
M.M.
, at para. 77, this was the
    standard the Court endorsed when describing when it is appropriate to dispense
    summarily with a request to present evidence about the claimed unreliability of
    evidence included in the record of the case.

[146]

Here, the committal
    judge did not take Mr. Viscomis
Charter
claim at its highest. Because
    of the absence of what may have been a full evidentiary record resulting from
    his disclosure ruling, the committal judge said:

There is nothing in any of the material before me on this
Charter
application to suggest that Mr. Viscomi was treated disrespectfully or
    aggressively during the period of his detention. Mr. Viscomi was entitled to
    adduce evidence on this application but has not done so. I will therefore
    proceed on the assumption that his detention was not accompanied by otherwise
    inappropriate conduct by the police.

[147]

By proceeding on the
    assumption that Mr. Viscomis detention was not accompanied by otherwise
    inappropriate conduct by the police, the committal judge was not taking his
Charter
claim at its highest.

[148]

As well, Mr. Viscomis
    failure to adduce evidence may have been attributable to the lack of
    disclosure, and cannot therefore be relied upon as confirming good faith on the
    part of the police.

[149]

Moreover, it cannot
    fairly be assumed that the disclosure would not have provided information
    undermining the good faith assumption that was made.

[150]

I say this with
    tremendous respect for the committal judge, but the good faith assumption he
    made could only serve to undermine Mr. Viscomis
Charter
claim.

[151]

In my view, the
    committal judge therefore erred, and the remedy he applied to overcome the
    unfairness arising from the lack of disclosure actually rendered the committal
    hearing unfair.

DISPOSITION

[152]

In my view, the
    approach used in
Stinchcombe
appeals, described in
Dixon
, at
    para. 36, operates where extradition committal decisions are appealed because
    of non-disclosure. Even if non-disclosure occurs, appellate relief is not
    required unless there is a reasonable possibility that the non-disclosure may
    have compromised the subjects ability to defend and answer the committal
    proceedings. That standard is met here. The committal judges felt need to
    assume
Charter
breaches because of the state of disclosure
    demonstrates his own appreciation that Mr. Viscomis ability to challenge the
    admission of evidence the requesting state relied upon was prejudiced by the
    order he made. My finding that the fairness of the s. 24(2) determination was
    compromised also meets this standard.

[153]

I would therefore
    allow the appeal, set aside the committal order, and order a new hearing.

Released: JCM June 14, 2019


David M. Paciocco J.A.


