



COURT OF APPEAL
    FOR ONTARIO

CITATION: United States v. Lane, 2017 ONCA 396

DATE: 20170518

DOCKET: C61435

Laskin, Watt and Hourigan JJ.A.

BETWEEN

The Attorney
    General of Canada

(On Behalf of
    the United States of America)

Respondent

and

Brandon William Lane

Applicant

John Norris, for the applicant

Richard Kramer and Monika Rahman, for the respondent

Heard: April 12, 2017

On application for judicial review from the decision of
    the Minister of Justice, dated November 16, 2015, to order the applicants
    surrender to the United States of America.

Hourigan J.A.:

A.

Introduction

[1]

The applicant is a resident of Ontario who
    resists extradition to the United States on a series of child pornography
    charges.

[2]

In 2010, American authorities alerted Canadian
    authorities about the applicants alleged leadership role in a sophisticated
    international child pornography organization that operated a website called Dreamboard.
    This information led to the laying of various child pornography charges against
    the applicant in the United States and Canada. The Canadian charges were
    ultimately stayed.

[3]

While on bail
pending the hearing for his
    committal for extradition, the applicants
father turned him in
    to the police after discovering the applicants homemade computer, which
    contained thousands of images of child pornography
. The applicant was
    charged with breach of recognizance and a number of criminal offences related
    to the possession and making of child pornography under the
Criminal Code
.
    He pleaded guilty to those offences.

[4]

At his sentencing hearing, the applicant applied under s. 725(1)(c) of
    the
Criminal Code
for the court to consider evidence that he not only
    possessed and made child pornography, but also that he distributed it through
    Dreamboard, even though a distribution charge was not before the court.
With the American charges looming, this was a tactical gambit to
    engineer a double jeopardy defence to resist a possible extradition. Over the
    objection of the Crown and the American authorities, the sentencing judge
    granted the application and
took the distribution into account as an
    aggravating factor in imposing a sentence of 9.5 years imprisonment. The
    applicant subsequently consented to his committal for surrender for
    extradition.

[5]

T
he applicant
submitted to the Minister of
    Justice that his surrender should be refused because the facts of his
    distribution of child pornography through Dreamboard were taken into account in
    his Canadian sentence. He argued that extradition to face similar charges in
    the United States would expose him to double jeopardy, contrary to art. 4(1)(i)
    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).

[6]

The applicant also argued that his surrender would violate s. 7 of the
Canadian
    Charter of Rights and Freedoms
primarily on the basis that the severity of
    the potential sentence he would be subject to in the United States would shock
    the Canadian conscience. He further submitted that extradition would
    unjustifiably infringe his right to remain in Canada under s. 6(1) of the
Charter
.

[7]

The Minister rejected the applicants arguments and
    ordered his extradition.

On
    this application for judicial review of the Ministers surrender
decision
, the applicant renews the arguments made to the Minister and also
    submits that the Minister applied the wrong test in her double jeopardy
    analysis. For the reasons that follow, I would dismiss the application.

B.

FACTUAL BACKGROUND

[8]

Dreamboard was a password-protected online forum with about 600
    members. It was dedicated to the distribution and advertisement of child
    pornography. Members were organized in a hierarchy of levels and corresponding
    privileges that they could advance through according to the number and
    frequency of their posts.

[9]

Dreamboard contained thousands of postings and messages
    containing child pornography and links to external images and videos. An
    American company hosted it with servers located in Georgia and Nevada in the United
    States.

[10]

Following an American-led investigation, approximately 70
    individuals were charged over their alleged involvement in Dreamboard between
    January and June of 2010. The entire content of Dreamboards databases was
    seized.

[11]

As a result of data retrieved during the American investigation,
    subscriber information associated with the IP address used by a member of the
    site known under the alias BossHiaka was traced to the applicants residence
    in Kingston, Ontario. American authorities alerted the RCMP, and arrest and
    search warrants were obtained.

[12]

The Kingston Police executed the warrants on November 26, 2010.
    The applicant was arrested and his computers were seized pursuant to the
    warrants. The applicant was charged with child pornography offences under the
Criminal
    Code
. He was released on bail on December 2, 2010.

[13]

Meanwhile, an American indictment against the applicant was
    issued on January 11, 2011. The appellant is charged with three counts of contravening
    the following provisions of Title 18 of the United States Code: engaging in a
    child exploitation enterprise, contrary to 18 U.S.C. §2252A(g); conspiracy to
    advertise the distribution of child pornography, contrary to 18 U.S.C.
    §2251(d)(1) and (e); and conspiracy to distribute child pornography, contrary
    to 18 U.S.C. §2252A(a)(2)(A) and (b)(1).

[14]

In the American indictment, the applicant is alleged to have
    acted as one of four administrators for the Dreamboard site. The administrators
    are alleged to have controlled membership on the site, advised members on
    appropriate security measures and provided technical support for the operations
    of the site. The applicant allegedly had a very high degree of responsibility
    for the site and held the highest level of membership.

[15]

It is alleged that between September 2008 and June 2010, the
    applicant posted about 2,600 messages to the site, hundreds of child
    pornography images, encouraged others to share such images and offered advice
    as to how to avoid detection through the use of encryption software. The
    applicant is also alleged to have encouraged members to sexually assault
    children and post videos of their assaults on the website.

[16]

Paul Graham Fry, a former Dreamboard user operating under the
    alias Lofty, has already been extradited from Canada to the United States. He
    will testify as to the applicants involvement in Dreamboard during the
    prosecution of the American charges.

[17]

The United States, by a Diplomatic Note dated January 28, 2011,
    formally requested the applicants extradition to stand trial in the State of Louisiana.
T
he Minister gave the Attorney General of Canada
    authority to seek the applicants committal for extradition under s. 15 of the
Extradition
    Act
, S.C. 1999, c. 18 (the Act) on February 25, 2011. She provided an
    amended authority to proceed on April 26, 2011 pursuant to s. 23 of the Act.

[18]

The Minister specified the following Canadian offences
    corresponding to the alleged criminal conduct for which the applicants was
    indicted in the United States: distribution of child pornography, contrary to
    s. 163.1(3) of the
Criminal Code
; and conspiracy to distribute child
    pornography, contrary to ss. 163.1(3) and 465 of the
Criminal Code
.

[19]

The applicant was ordered to be detained in custody pending the
    extradition proceedings. The Canadian charges against the applicant were
    withdrawn on November 15, 2011 for reasons that have not been disclosed.

[20]

A committal hearing took place on November 28, 2011 before
Abrams J
. The applicant had brought an application under s. 8
    of the
Charter
to exclude evidence obtained from the applicants
    residence during the arrest in Kingston. Abrams J. took this decision under
    reserve.

[21]

Armstrong J.A., for this court, ordered the applicants release
    on a recognizance of bail on December 23, 2011 pending the decision on
    committal. The applicants parents and an aunt were to act as sureties. He was
    required not to possess a computer capable of accessing the Internet.

[22]

On August 14, 2012, the applicants father found a homemade computer
    in the applicants bedroom and reported this breach of recognizance to the
    authorities. The police found a substantial quantity of images of child
    pornography on the makeshift computer, including the applicants surreptitious
    video recording of his cousins two young daughters while they were being
    changed and toileted by their mother at the applicants residence.

[23]

On September 26, 2012, Abrams J. released his decision on the
Charter
application in the applicants committal proceeding: see 2012 ONSC 5404. He
    found a s. 8 breach and excluded the evidence at issue from the proceeding pursuant
    to s. 24(2) of the
Charter
.

[24]

On September 26, 2013, for reasons unrelated to the application
    for judicial review currently before this court, Abrams J. stayed the committal
    proceeding as an abuse of process: 2013 ONSC 6078. However, this court set
    aside the stay and ordered a new committal hearing on June 30, 2014: 2014 ONCA
    506, 121 O.R. (3d) 721. The Supreme Court of Canada denied leave to appeal:
    [2014] S.C.C.A. No. 425.

[25]

On January 6, 2014, the applicant pleaded guilty before Beaman J.
    in the Ontario Court of Justice to the following
Criminal Code
offences arising out of the homemade computer discovered by his father while he
    was on bail: breach of recognizance, contrary to s. 145(3); making child
    pornography in the form of a digital video file, contrary to s. 163.1(2); voyeurism,
    contrary to s. 163.1(2); possessing digital video of child pornography,
    contrary to s. 163.1(4); possessing digital images of child pornography,
    contrary to s. 164.1(4); and possessing digital images of a value not exceeding
    $5,000, knowing the images were obtained by the commission of an offence in
    Canada, contrary to s. 355(b).

[26]

As part of the guilty plea, an agreed statement of facts was read
    into the record. It acknowledged the applicants role in Dreamboard since 2008,
    the fact that the applicant posted thousands of images of child pornography on
    the site and the fact that he distributed such images and assisted other
    members of Dreamboard in distributing them.

[27]

At sentencing, the applicant applied under s. 725(1)(c) of the
Code
for the court to exercise its discretion to consider evidence that the
    applicant not only possessed and made child pornography, but also that he
    distributed it through Dreamboard. This provision states:

725
(1) In determining the sentence, a court



(c) may consider
    any facts forming part of the circumstances of the offence that could
    constitute the basis for a separate charge.

The Crown and the
American Department
    of Justice
opposed the application
.
Beaman J.
    granted it,
writing as follows:

[T]o not consider the fact that Mr. Lane both
    received files and distributed child pornography that he discovered through his
    own endeavors, would improperly constrain this courts decision-making process
    on sentencing. I have found that the distribution element of Mr. Lanes on-line
    activities played a key role in his ability to move up in the Dream Board
    organization, and give him access to bigger and more graphic digital
    collections.
[1]

[28]

Beaman J. considered the facts of the applicants distribution of
    child pornography in relation to his role with Dreamboard as aggravating
    factors. She imposed a total of 9.5 years incarceration, broken down as
    follows: two years for breach of recognizance; two years for each possession of
    child pornography offence, concurrent to each other but consecutive to the
    sentence for the breach offence; one year consecutive for the voyeurism
    offence; one year consecutive for possessing stolen property; and six months
    consecutive for making child pornography.

[29]

The applicant consented to committal for extradition before McMahon J.
    in the Superior Court of Justice on February 10, 2015.

C.

Reasons of the Minister

[30]

The applicant submitted to the Minister that his surrender should
    be refused three grounds.

[31]

First, he argued that his surrender would violate the protection
    against double jeopardy in art. 4(1)(i) of the Treaty, which provides that
    extradition should not be granted:

When the person whose surrender is sought is being proceeded
    against, or has been tried and discharged or punished in the territory of the
    requested State for the offense for which his extradition is requested.

According to the applicant, the similarity between the
    conduct for which he was punished in Canada and that for which he would potentially
    be punished in the United States also rendered his surrender unjust and
    oppressive, contrary to s. 44(1)(a) of the
Act
.

[32]

Second, the applicant argued that the severity of the potential
    sentence in the United States rendered his surrender contrary to the principles
    of fundamental justice under s. 7 of the
Charter
.

[33]

Third, he argued that the surrender would unjustifiably limit his
    right to remain in Canada under s. 6(1) of the
Charter
.

[34]

In a letter dated November 16, 2015 to the applicants counsel, the
    Minister provided her reasons for ordering the applicants surrender to the United
    States. She rejected each ground relied on by the applicant.

[35]

The applicant filed additional submissions with the Minster on August
    23, 2016 requesting that she reconsider her surrender decision. The Minister
    declined to consider the new submissions.

D.

Issues

[36]

The applicant submits that the Ministers decision to order his
    surrender was unreasonable. The issues he raises on this application for
    judicial review and my conclusions on each issue may be summarized as follows:

1.

Should
    this court interfere with the Ministers decision that the applicants
    surrender would not infringe the protection against double jeopardy in art.
    4(1)(i) of the Treaty?

No. The Minister
    applied the correct analytical approach to double jeopardy under art. 4(1)(i)
    by looking to the elements and objectives of the charges the applicant faced in
    Canada and the United States. The alternative conduct-based approach urged by
    the applicant is inconsistent with the language of art. 4(1)(i) and controlling
    authority from the Supreme Court of Canada. Moreover, it is better suited to
    the issue of double criminality. The Ministers conclusion regarding double
    jeopardy was reasonable and, therefore, should not be interfered with by this
    court.

2.

Should
    this court interfere with the Ministers decision that the applicants
    surrender would not infringe s. 7 of the Charter and her refusal to reconsider
    this conclusion on the basis of the applicants further submissions?

No. The Minister
    was aware of the potential lengthy prison sentence the applicant would face if
    extradited. However, she reasonably concluded that, given the applicants
    alleged role in a sophisticated international child pornography organization,
    the potential sentence he would face in the United States would not shock the
    Canadian conscience. The applicants additional submission that his sentence
    would shock the Canadian conscience because he engaged in his activities while
    in Canada and not the United States is not persuasive. It is not shocking that
    the applicant may be punished for conduct that took place partially in the
    United States and that impacted that country. The Minister also reasonably
    declined to consider the applicants additional submissions, as he did not
    raise any new issues that would impact her decision.

3.

Should
    this court interfere with the Ministers decision that the applicants
    surrender would not infringe s. 6(1) of the Charter?

No.
The Minister balanced all of the competing factors and came to a
    reasonable decision. She did not err in concluding
that the applicant
    had not already been punished for the American offences he faces.
Nor did she err in failing to
investigate why no further charges
    would be laid against the applicant in Canada, as
prosecutorial
    authorities are not required to disclose such decisions and the ability to
    prosecute in Canada is only one of the many factors to be considered. The
    Minister also gave
sufficient weight to the potential for civil
    commitment in the United States
and reasonably rejected it as
    a violation of the applicants s. 6(1)
Charter
rights.


E.

ANALYSIS

(1)

Double Jeopardy

(i)

The Ministers Decision

[37]

The Minister found that the applicants surrender would not violate art.
    4(1)(i) of the Treaty. She stated that the essential character of the
    uncharged child pornography distribution offence taken into account by Beaman
    J. at sentencing is the act of distributing, sharing or transmitting child
    pornography. She compared this offence to the American offences and concluded that
    they concerned different wrongs, following
Canada v. Schmidt
, [1987] 1
    S.C.R. 500, at pp. 527-528.

[38]

The first offence charged in the United States was engaging in a child
    exploitation enterprise. The materials submitted by the American authorities in
    support of the extradition request indicated that a person engages in a child
    exploitation enterprise if the person knowingly participates, in concert with
    three or more persons, in three or more separate incidents of felonious conduct
    involving the exploitation of children, including the advertisement and
    distribution of child pornography. Furthermore, the three or more incidents
    must involve more than one victim, and, if the act of child exploitation
    involves the advertisement and distribution of child pornography, the accused
    must know that pornographic material is transported in interstate or foreign
    commerce by computer. The American authorities advised that this offence was
    enacted to target individuals who engage in large-scale unlawful conduct
    involving the exploitation of children.

[39]

The Minister inferred from this information that the essential
    character of the American child exploitation enterprise offence is taking
    part in a large-scale criminal organization dedicated to committing offences
    against children. She regarded the advertisement and distribution of child
    pornography as only a component of the offence, not its essence.

[40]

The Minister concluded that the essential character of the Canadian
    offence of distributing child pornography is distinct from that of the American
    child exploitation enterprise offence. The two offences concern distinct wrongs
    because the former contains no element of an enterprise or large-scale conduct,
    whereas the latter does. Therefore, double jeopardy was not engaged.

[41]

The second and third offences charged in the United States were
    conspiracy to advertise the distribution of child pornography and conspiracy to
    distribute child pornography. These offences were premised on the alleged
    agreement between the applicant and his co-conspirators to advertise or carry
    out the distribution of child pornography.

[42]

The Minister noted that conspiracy does not subsume the substantive
    offence and that a person may be convicted of both the conspiracy and the
    substantive offence that is the object of the conspiracy, citing
Sheppe v.
    The Queen
, [1980] 2 S.C.R. 22. Thus, the American conspiracy offences were
    distinct from the Canadian substantive distribution offences. The sentence
    imposed by Beaman J. that reflected the Canadian distribution offence did not
    address any alleged agreement between the applicant and his co-conspirators.
    Again, the Minister concluded that double jeopardy was not engaged.

(ii)

Arguments on the Application for Judicial Review

[43]

In this court, the applicant submits that the Minister applied an
    overly narrow and formalistic interpretation of the requirements of double
    jeopardy. He argues that the analysis under art. 4(1)(i) must focus on the conduct
    to which a foreign charge relates rather than the specific constituent elements
    of the charge under foreign law, which the Minister fixed on. In his submission,
    when applying the double jeopardy principle, it is not necessary for the
    Canadian offence to match the foreign offence in name or in its elements; he
    says that only the essence of the offence matters, citing
Canada
    (Justice) v. Fischbacher
, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 29.

[44]

The applicant submits that the Minister failed to follow this approach
    and erred in law in focusing her analysis on the elements of the Canadian and
    American offences and not on the conduct underlying the offences. According to
    the applicant, the Minister failed to recognize the fundamental commonality in
    the conduct underlying the offences. He further submits that she erred in
    insisting on perfect symmetry between the constituent elements of each offence.

(iii)

Standard of Review

[45]

The decision of the Minister to order surrender is reviewed on a
    reasonableness standard:
Canada (Minister of Justice) v. Lake
, 2008
    SCC 23, [2008] 1 SCR 761, at paras. 34-41. However, I accept the submission of
    the applicant that, when considering the issue of double jeopardy, the Minister
    must apply the correct test:
Lake
, at para. 41.

[46]

Consequently, in the next sections of my analysis, I will first consider
    whether the Minster applied the correct test under art. 4(1)(i) of the Treaty.
    I will then turn to the question of whether the Minister reasonably determined
    that double jeopardy was not engaged.

(iv)

The
Correct Test is
    Offence-Based

[47]

On the applicants proposed conduct-based approach to art. 4(1)(i), when
    the Minister determines whether to order a persons surrender for extradition,
    she must consider whether the charges of the foreign offence relate to conduct
    for which the person has already been punished in Canada.

[48]

In my view, it is incorrect to adopt the applicants position because
    it is contrary to the plain language and meaning of art. 4(1)(i); it is
    inconsistent with Supreme Court jurisprudence; and it wrongly imports into the
    double jeopardy analysis the conduct-based approach used in considering the
    principle of double criminality in extradition law. I will review each of these
    reasons below.

[49]

First, art. 4(1)(i) of the Treaty requires the Minister to refuse
    extradition when the person whose surrender is sought is being proceeded
    against, or has been tried and discharged or punished in the territory of the
    requested State for the
offence
which the extradition is requested (emphasis
    added). Thus, the Treaty requires the Minister examine the offence for which a
    person has been previously punished and compare that to the offence for which
    the persons extradition is sought. There is no suggestion in the Treaty that
    the Minister should undertake an analysis of the conduct engaged in by the
    person sought.

[50]

Second, the governing authority on the correct approach to double
    jeopardy in the extradition context is
Schmidt
, where the Supreme
    Court of Canada took an offence-based approach to the analysis. In
Schmidt
,
    the United States sought Ms. Schmidts extradition for the offence of child
    stealing under the laws of the State of Ohio. She had already been tried and
    acquitted on the same facts for the federal American crime of kidnapping. She
    argued that extradition would result in her being exposed to double jeopardy,
    contrary to ss. 7 and 11(h) of the
Charter
and the Treaty.

[51]

La Forest J. held that Ms. Schmidts double jeopardy concern could be
    considered under the principles of fundamental justice in s. 7 of the
Charter
(but not under s. 11(h) of the
Charter
). He stated at p. 528:

Repeated attempts by the same prosecutorial authorities to
    prosecute a person for the same offence may, in certain circumstances, well
    amount to harassment sufficiently oppressive that surrender of such a person
    would violate those principles.

[52]

However, he concluded that this standard was not met, writing as follows
    at p. 528:

The two offences involve quite different elements. The
    kidnapping offence is aimed at regulating interstate and foreign commerce, and
    maritime jurisdiction, as well as internationally-protected persons. The state
    action is aimed at public order within the state, and is designed particularly
    to protect young persons. Various other elements and defences appear in one
    provision but not the other. Different interests are involved, with different
    prosecutorial authorities following their own paths
. Similar situations may
    exist in this country. They do not generally arise in as acute a fashion here
    because criminal law is exclusively vested in Parliament, but on the other hand
    the same prosecutorial authorities are often involved. [Citations omitted and
    emphasis added.]

In this passage, La Forest J. focuses on the different
    elements and objectives of the two offences, not on the alleged conduct. Ms.
    Schmidts potential exposure to double jeopardy for the Ohio offence and for
    the federal offence was not contrary to the principles of fundamental justice
    because the two offences at issue were comprised of different elements and
    objectives: Anne W. La Forest,
La Forests Extradition to and From Canada
,
    3d ed (Aurora, ON: Canada Law Book, 1991), at p. 113.

[53]

Thus, the proper approach to double jeopardy in the extradition context
    is not conduct-based but offence-based. The Minister may look to the
    constituent elements of the foreign and Canadian offences to see if they align,
    as well as to the objectives of the two offences.

[54]

The applicant argues that
Schmidt
is distinguishable because La
    Forest J. held that art. 4(1)(i) of the Treaty had no application in that case.
    La Forest J. reasoned that art. 4(1)(i) applies only where a person whose
    extradition is sought has been already been punished in Canada and faces
    potential punishment for the same offence in the requesting state. It did not apply
    in
Schmidt
because Ms. Schmidt has already been punished in the
    requesting state, the United States, and faced extradition for the same offence
    in that state: see p. 517.

[55]

While I accept that there is a factual difference between
Schmidt
and the present case, there is no principled basis to conclude that an offence-based
    analysis should not be adopted when considering double jeopardy under art.
    4(1)(i) of the Treaty in circumstances where the provision is properly
    applicable. Indeed, after
Schmidt
, the Quebec Court of Appeal applied
    an offence-based analysis to art. 4(1)(i) in
États-Unis dAmérique v. Garz
,
    2006 QCCA 222, 215 C.C.C. (3d) 429 (cited to C.C.C.). In concluding that a
    surrender decision by the Minister did not violate art. 4(1)(i), Côté J.A. affirmed
    the Ministers statement that the Canadian and foreign offences at issue must
    have the same elements for double jeopardy to be engaged. She agreed with the
    Minister that [t]he essential elements of the offences and the evidence
    supporting the charges in the United States are different: para. 66.

[56]

Furthermore, the Supreme Courts decision in
Schmidt
is
    consistent with its later decision in
R. v. Van Rassel
, [1990] 1 SCR
    225.
Van Rassel
involved an accused who had been acquitted in the
    United Sates of three charges. The issue was whether he could be tried in
    Canada for a similar charge. The accused pleaded
autrefois acquit
,

but the Supreme Court rejected that submission. McLachlin J. (as she then
    was) stated at p. 234 that, when assessing whether the plea is made out in
    relation to double prosecution for similar domestic and foreign offences, the
    court must determine whether the offences in question are different or the same
    in nature:

It is sometimes difficult to apply the
    principle of
autrefois acquit
to
    charges arising in criminal law systems completely different from our
    own. While the laws of different countries are rarely the same, it must be
    recognized that the plea of
autrefois acquit
is based on the principle of justice and fairness and that the
Criminal Code
does not require that the charges be
    absolutely identical. Despite the technical form of the relevant sections
    of the
Criminal Code
, the substantive point is a simple one:  could
    the accused have been convicted at the first trial of the offence with which he
    is now charged? If the differences between the charges at the first and
    second trials are such that it must be concluded that the charges are different
    in nature, the plea of
autrefois acquit
is not
    appropriate. On the other hand, the plea will apply if, despite the differences
    between the earlier and the present charges, the offences are the same.
[Emphasis
    added.]

[57]

I reject the applicants submission that the Supreme Court adopted a
    conduct-based analysis in
Van Rassel
. To the contrary, in concluding
    that
autrefois acquit
was not applicable, the court looked not to the
    accuseds conduct but to distinctions between the essential elements of the Canadian
    and American charges: p. 236. In the above excerpt from McLachlin J.s reasons,
    she held there was no necessity for perfect symmetry between the two charges.
    It would have been sufficient if the natures of two charges were the same.

[58]

The applicant also relies on the decision of the Manitoba Court of
    Appeal in
United States of America v. Andrews
(1991), 65 C.C.C. (3d)
    345 (Man. C.A.), at p. 350, as support for adopting a conduct-based approach to
    art. 4(1)(i) of the Treaty. In
Andrews
, the court commented favourably
    on such an approach in
obiter
: p. 350. However, this decision is of
    little assistance to the applicant because Philp J.A. concluded that it was
    unnecessary to decide whether a conduct-based approach should be preferred over
    an offence-based approach: p. 352.

[59]

In summary, the Supreme Court has made clear that the proper approach to
    the double jeopardy analysis is offence-based and not conduct-based.

[60]

Third, while a conduct-based approach is appropriate when applying the
    principle of double criminality in Canadian extradition law, it is
    inappropriate for considering the issue of double jeopardy. A conduct-based
    approach to double criminality is specifically mandated by ss. 3(1)(a) and (b)
    of the
Act
when an extradition judge determines whether to order a
    persons committal for extradition. This can be contrasted with the mandate in
    art. 4(1)(i) of the Treaty, which requires the Minister to examine the
    similarities between the Canadian offences that a person has been punished for
    and the foreign offence for which the persons extradition is sought.

[61]

The conduct-based approach to double criminality also must be understood
    in terms of the role of the extradition judge at a committal hearing, which is
    set out in s. 29(1)(a) of the
Act
. The judge must order committal where
    there is evidence 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. Nothing in this provision suggests that the extradition judge should
    be concerned with the constituent elements of the foreign offence.

[62]

The judges duty at a committal hearing is simply to determine whether
    there is a
prima

facie
case of a Canadian crime. It is not
    open to the judge to consider the nature of the charges in the United States
    of America. She is obliged to accept the statement of the Minister that the
    alleged conduct corresponds to the named Canadian offences:
United States
    of America v. Kucan
, [2001] O.J. No. 4162 (C.A.), at para. 5. See also
United
    States of America v. Cail
, 2009 ABCA 345, 15 Alta. L.R. (5th) 46, at para.
    15.

[63]

Further, t
he conduct-based approach to double
    criminality has two rationales that are not applicable to double jeopardy.
It
    first
ensures that the person whose extradition is sought is
    punished only for conduct that he or she had fair notice would invite
    punishment in Canada for their commission:
Washington (State of) v.
    Johnson
, [1988] 1 S.C.R. 327, at pp. 341-342.
This
    fair-notice rationale is distinct from the purpose of the protection against
    double jeopardy, which is to ensure the finality of a criminal verdict, protect
    the individual interest in repose and avoid state oppression of the individual
    by means of repeated criminal proceedings: see
George C. Thomas III, An
    Elegant Theory of Double Jeopardy, [1988] U. Ill. L. Rev. 827, at pp. 839-840
.

[64]

The conduct-based approach to double criminality also ensures
    that Canada only extradites a person to face foreign charges when it is also
    possible for Canada to reciprocally request that persons extradition from
    another nation to face those charges in Canada:
Johnson
, at pp.
    341-342.
However, there is no need for this reciprocity
    rationale to shape the correct approach to double jeopardy. It will already have
    been fully satisfied by the application of the double criminality principle by
    an extradition judge at the committal stage of the extradition process, which
    occurs before the Minister and this court consider the protection against
    double jeopardy in art. 4(1)(i) of the Treaty.

[65]

I would add the final observation that the Supreme Courts decision in
Fischbacher
relied on by the applicant is if no assistance to him. In that case, the
    Supreme Court was considering the double criminality provisions in the Act and
    not double jeopardy under the Treaty.

[66]

For the foregoing reasons, I conclude that the Minister was correct in
    applying an offence-based approach to the double jeopardy analysis.

(v)

The Ministers Decision was Reasonable

[67]

Having found that the Minister used the correct test, the analysis
    shifts to determining whether the Ministers conclusion that double jeopardy
    was not engaged was reasonable. In my view, it was.

[68]

Under the offence-based approach to art. 4(1)(i) of the Treaty applied by
    the Minister, she was obliged to determine whether the Canadian offences for
    which the applicant was punished have the same or different elements and
    objectives as the American offences for which his extradition was sought.

[69]

Beaman J. considered facts about the applicants distribution of child
    pornography through Dreamboard. To be convicted of distributing child
    pornography contrary to s. 163.1(3) of the
Criminal Code
,

the
    accused must have knowledge that the pornographic material was being made available
    or be wilfully blind to that fact. But the accused need not have knowingly and
    by some positive act facilitated the availability of the material:
R. v.
    Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 83-84.

[70]

It was reasonable for the Minister to conclude that the elements and
    objectives of the Canadian distribution offence and the American child
    exploitation enterprise offence are distinct. The Canadian offence contains no
    element of acting in concert with three or more persons in three or more
    incidents of exploiting children, involving three or more victims, or of
    knowing that the pornographic material is distributed inter-provincially or
    internationally by computer. Nor does it require proof of the positive act of
    organized cooperation with others to facilitate the distribution of the
    material, as the American offence does.

[71]

The distribution of child pornography is in fact ancillary to the core element
    of the American offence, which is the organized, interstate or international
    collaboration with others to exploit children. The child exploitation may involve
    the distribution of child pornography, but that is not necessary; it could also
    involve sex trafficking (18 U.S.C. §1591) or kidnapping (18 U.S.C. §1591). By
    contrast, the distribution of child pornography is at the core of the Canadian
    offence in s. 163.1(3) of the
Criminal Code
.

[72]

These distinctions underscore that the objective of the American offence
    is narrower than the Canadian offence. It is to criminalize large-scale,
    organized child exploitation operations that occur across state or national
    borders. This was the objective proposed by the American authorities to the
    Minister. The Canadian offence more broadly targets the distribution of child
    pornography even when it is committed by a single person by means other than a
    computer, without cooperating with others, in a single incident involving a
    single victim and without crossing borders.

[73]

The Ministers decision that the American charges of conspiracy to distribute
    and advertise child pornography differ from the Canadian offence of distributing
    child pornography was also reasonable. A charge of conspiracy does not subsume
    the substantive offence. The essence of conspiracy is a meeting of minds with
    regard to a common design to do something unlawful, not the actual carrying out
    of that design: see
Sheppe
;
United States of America v. Dynar
,
    [1997] 2 S.C.R. 362, at paras. 86-90; and
Lake
, at para. 44.

[74]

Although, as the appellant points out, sentences for a conspiracy and
    the substantive offence are usually ordered to be served concurrently, this
    rule is not an absolute requirement in Canadian law. The rule, therefore, does
    not suggest that consecutive punishment for the conspiracy and the substantive
    offence is contrary to the protection against double jeopardy. In any event,
    the Minister did consider that a sentencing judge in the United States could
    take into account the time the applicant spent in custody in Canada as a
    mitigating factor.

[75]

In summary, the Ministers decision that double jeopardy
    under art. 4(1)(i) of the Treaty did not apply in the circumstances of this
    case was reasonable and there is no basis for appellate interference.

(2)

Unjust or Oppressive Surrender

(i)

The Ministers Decision

[76]

The Minister rejected the applicants submission that his surrender
    would be unjust or oppressive contrary to s. 44(1)(a) of the Act. She noted
    that the applicants argument that the nexus between the conduct for which he was
    punished in Canada and that for which he would be punished in the United States
    made his surrender unjust or oppressive was similar to his double jeopardy
    argument. The double jeopardy argument having been rejected, she focused on the
    applicants submissions under s. 7 of the
Charter
that were grounded
    on the severity of the sentence he was subject to in the United States.

[77]

Section 44(1)(a) requires the Minister to refuse a surrender order if
    she is satisfied that the surrender would be unjust or

oppressive

having regard to all the relevant
    circumstances. This provision required her to consider whether a surrender
    order would be consistent with the principles of fundamental justice under s. 7
    of the
Charter
. It would not be consistent if it would shock the Canadian
    conscience:
United States v. Burns
, 2001 SCC 7, [2001] S.C.R. 283, at
    paras. 68-69. The applicant submitted that the severity of the potential
    sentence that he would receive in the United States would shock the Canadian conscience.

[78]

The Minister found that the offences the applicant was alleged to have
    committed were very serious offences against children, and the potential
    penalties in the United States are reflective of a growing concern with respect
    to the sexual exploitation of children over the Internet. She also noted that
    the courts have repeatedly held that in cases where a person faced a lengthy
    mandatory minimum sentence in the requesting state, his or her surrender did
    not violate s. 7 of the
Charter
, citing, for example, this courts decision
    in
United States v. K. (J.H.)
(2002), 165 C.C.C. (3d) 449 (Ont. C.A.),
    leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 501.

[79]

The Minister concluded that the applicants surrender would not shock
    the Canadian conscience as a consequence of the severity of the sentence he
    faced in the United States.

[80]

On August 3, 2016, the applicant made further submissions to the
    Minister asking her to reconsider her earlier decision to order his surrender. These
    submissions contained an expert opinion prepared by Betty L. Marak, Assistant
    Federal Public Defender, Middle and Western Districts of Louisiana.

[81]

Ms. Marak was very familiar with the Dreamboard prosecutions. She
    opined that the applicant would receive a sentence of 38 years incarceration
    at minimum on a guilty plea for the offence of engaging in a child exploitation
    enterprise. If convicted after trial, Ms. Marak was of the view that the
    applicant would be sentenced to life in prison. Ms. Marak also opined that the
    sentencing factors on which the Minister relied to conclude that the applicant
    would likely not be subject to a disproportionate sentence in the United States
    would not mitigate the applicants sentence and that some factors would
    actually increase it.

[82]

By letter dated October 6, 2016, the Minister declined to
    consider the new submissions on the basis that the applicant had not raised any
    new issues.

(ii)

Submissions on the Application for Judicial
    Review

[83]

The applicant submits that the Ministers decision that his surrender
    would not violate s. 7 of the
Charter
was based on a misapprehension
    of evidence. He argues that a significant discrepancy between the jeopardy
    faced by the person sought by the requesting state and that which he would face
    if convicted in Canada is a factor that tends to make a surrender unjust:
Fischbacher
,
    at para. 54. The applicant further submits that this court has recognized that
    there can be cases where the potential sentence in the requesting state will be
    so grossly disproportionate to the personal circumstances of the person sought that
    a surrender would shock the Canadian conscience: see
United States of
    America v. Leonard
, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 94.

[84]

The applicant also says that the Minister further erred in not
    reconsidering her surrender decision in light of the new facts he presented in
    his additional submissions and in not concluding that those facts disclosed how
    his surrender would result in a grossly disproportionate sentence.

(iii)

Analysis

[85]

I see no basis to interfere with the Ministers decision regarding the
    applicants potential sentence. The test of whether a sentence would shock the
    conscience of Canadians is a very strict one that constitutionally limits the
    Ministers decision to surrender only in very exceptional circumstances:
France
    v. Diab
, 2014 ONCA 374, 120 O.R. (3d) 174, at para. 202, leave to appeal
    to S.C.C. refused, [2014] S.C.C.A. No. 317.

[86]

The Minister correctly applied this test in her s. 7 analysis. She was
    aware that there was a potential that the applicant could receive life in
    prison on the American child exploitation charge. However, she recognized that
    sentencing in the United States would be based on several variables, including:
    the applicants cooperation with the U.S. authorities; whether he enters a
    guilty plea; sentencing guidelines and precedent; a pre-sentence report that
    the applicant could participate in preparing; the fact that he cannot be
    sentenced on both the child exploitation enterprise offence and the lesser and
    included conspiracy offences; and his own circumstances and mitigating factors,
    particularly his time served in custody in Canada.

[87]

There is no question, and the Minister was certainly aware, that the
    applicant faces a significant sentence in the United States. However, absent a
    potential death penalty or sentence that would involve some form of torture,
    the severity of a sentence will not generally shock the conscience of
    Canadians:
United States of America v. Wilcox
, 2015 BCCA 39, 321
    C.C.C. (3d) 82, at para. 41, leave to appeal to S.C.C. refused, [2015] S.C.C.A.
    No. 124. The sentence the applicant faces in the United Sates would not meet these
    criteria. Nor would it be so grossly disproportionate to the personal
    circumstances of the applicant as to shock the Canadian conscience.

[88]

I also do not accept the applicants submission that his sentence would
    shock the Canadian conscience because he engaged in his activities while in
    Canada and not the United States. In the American indictment, the applicant is
    alleged to have been a leader of a sophisticated child pornography enterprise
    whose harmful impact reached across the Canadian border into the United States.
    It is a reasonable inference that he knew of the international nature of the
    organization and that it utilized servers located in the United States. As this
    court stated in
France v. Liang
, 2007 ONCA 741 88 O.R. (3d) 12, at
    para. 24, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 589, criminals
    whose crimes know no borders run the risk that any of the countries harmed by
    their actions may justifiably demand that they answer for their actions in that
    country.

[89]

Finally, I see no error in the Ministers refusal to accept the late
    submissions of the applicant. The Minister was under no obligation to accept those
    submissions, which were filed nine months after she rendered her initial
    surrender decision, and her refusal is entitled to deference:
Germany v.

Schreiber
, 2007 ONCA 791, 87 O.R. (3d) 641, at para. 4, leave to
    appeal to S.C.C. refused, [2008] S.C.C.A. No. 14.

[90]

In any event, I am not satisfied that Ms. Maraks opinion would have
    made any difference in the Ministers surrender decision. The opinion suggested
    that the applicant would receive a sentence of 38 years on a guilty plea. For
    the reasons given above, this would not render the decision shocking to the
    Canadian conscience. Moreover, the opinion confirmed much of what the Minister
    understood would occur on the sentencing, including the fact that the
    sentencing judge could consider the time spent incarcerated in Canada as a
    mitigating factor.

(3)

Section 6(1) of the
Charter

(i)

The Ministers Decision

[91]

The Minister rejected the appellants submission that his surrender
    would violate s. 6(1) of the
Charter
, which provides: Every citizen
    of Canada has the right to  remain in  Canada. In assessing this submission,
    she followed the framework laid out in
United States of America
    v. Cotroni
, [1989] 1 S.C.R. 1469.

[92]

The Minister stated that the question she had to answer was whether
    surrendering the applicant to face prosecution in the United States would
    unjustifiably infringe his right to remain in Canada. She decided that it would
    not, relying on the following considerations:

·

The fact that the applicant was a Canadian citizen was not enough
    to make his extradition unjustifiable.

·

The United States had jurisdiction to prosecute the applicant for
    the offences for which his extradition was sought.

·

Whether the applicant intended to commit offences against American
    criminal law was irrelevant, as it was beyond the function of the extradition
    process to assess the sufficiency of the evidence against the applicant.

·

American authorities initiated and developed the case against the
    applicant. The key evidence against him was located in the United States as was
    the key witness, Mr. Fry, who could be compelled to testify by the American authorities.

·

The majority of the other members of Dreamboard who were arrested
    in the investigation of the website were convicted in the United States, and it
    was desirable for all of them to face prosecution in the same jurisdiction.

·

There were no Canadian charges outstanding against the applicant
    stemming from his involvement in Dreamboard. He pleaded guilty to related
    conduct but not the conduct for which the United States sought extradition.

·

The applicant could have access to the same rehabilitative
    programs in Canada and the United States.

(ii)

Analysis

[93]

The applicant concedes that the Ministers decision on this issue
    should be granted a high level of deference: see
United States of America
    v. Sriskandarajah
, 2012 SCC 70, [2012] 3 S.C.R. 609, at paras. 22-23.
However,
according to the applicant, the Minister made three
    errors in her s. 6(1)
Charter
decision.

[94]


First, the applicant submits that the
    Minister relied on the erroneous conclusion that he had not already been
    punished for the American offences he faces.
For the reasons
    given above, I am not satisfied that the applicant has been punished for the
    American offences that he is facing.

[95]

Second, the applicant submits that the Minister erred in relying
    on the fact that no charges were pending against the applicant in Canada
    because, as this court made clear in
Leonard
at para. 77, this kind of
    reasoning evades her responsibility to inquire into the reasons why no further
    charges would be laid
.

[96]

I would not accede to this argument. Absent an
    allegation of bad faith, prosecutorial authorities are not required to disclose
    their decisions, and the ability to prosecute in Canada is only one of the many
    factors to be considered in the s. 6(1)
Charter
analysis:
Sriskandarajah
, at
    paras. 27-28. In addition, this courts decision in
Leonard
is distinguishable because in that case the sole determining factor
    relied upon by the Minister to make a surrender order was the absence of
    Canadian charges. In the present case, the absence of Canadian charges was just
    one of several factors relied upon by the Minister.

[97]

Third, the applicant argues that the Minister erred in not giving
    sufficient weight to the potential for civil commitment in the United States. However,
there is no question that the Minister considered this issue.
    She noted that, according to the information provided by the United States,
    after serving his sentence it would be more likely than not that the applicant
    would be deported rather than be subject to a civil commitment order.

[98]

In addition, the Minister went on to analyze
    whether a potential civil committal may frustrate the applicants
    rehabilitation prospects and concluded that it would not. The applicant points
    out that, according to Ms. Maraks expert opinion, the threat of civil
    commitment influences many sexual offenders not to seek treatment while
    imprisoned. That opinion does not detract from the reasonable conclusion
    reached by the Minister that by participating in treatment while in prison in
    the United States, the applicant would be in a position to argue that he
    addressed any mental health issues.

[99]

In summary, the Ministers decision regarding
    the applicants s. 6(1)
Charter
rights was
    reasonable and does not warrant appellate interference. The Minister balanced
    all of the competing factors and came to a reasonable decision.

F.

DISPOSITION

[100]

For the foregoing reasons, I would dismiss the application for
    judicial review.

Released: DW MAY 18 2017

C.W. Hourigan J.A.

I agree. John Laskin
    J.A.

I agree. David Watt
    J.A.





[1]

Beaman J.s decision was not appealed. Nothing in these
    reasons should be considered an endorsement of her decision as there is good
    reason to doubt its correctness. She did not cite or apply the leading
    authorities on s. 725(1)(c) 
R. v. Larche
, 2006 SCC 56, [2006] 2 S.C.R.
    762, and
R. v. Angelillo
, 2006 SCC 55, [2006] 2 S.C.R. 728. It is also
    difficult to understand why it was necessary to consider the applicants
    distribution activities when sentencing him on distinct charges that took place
    while on bail pending his committal hearing.


