



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Viscomi, 2016 ONCA 980

DATE: 20161223

DOCKET: M47285 (C62967)

Gillese J.A. (In Chambers)

BETWEEN

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

Respondent

and

Marco Viscomi

Applicant

Julianna Greenspan and Brad Greenshields, for the
    applicant

Nancy Dennison and Monika Rahman, for the respondent

Heard: December 20, 2016

Gillese J.A.:

[1]

Marco Viscomi (the Applicant) applies under s.
    20 of the
Extradition Act
, S.C. 1999, c. 18

(the Act) for bail pending his appeal of the order dated October 25,
    2016, committing him for extradition to the United States.  He has been in
    custody in relation to this matter since August of 2012.

[2]

The Attorney General of Canada opposes the
    application.

Background in Brief

[3]

The proceedings in this case have a long and
    complicated history.  Only the key parts of the chronology that are relevant to
    this application are set out below.

[4]

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


[5]

In the United States, the Applicant will face
    child pornography and child luring charges in respect of these allegations.  If
    convicted, he faces a sentence of up to 30 years in prison.

[6]

The Applicant was arrested on domestic charges
    on March 22, 2012.  He was released on bail on March 22, 2012, on the consent
    of the Attorney General of Ontario, subject to the condition that he reside
    with his father as a named surety.

[7]

On August 9, 2012, the Applicant was arrested
    under the Act.  The Canadian charges were withdrawn.

[8]

The Applicant brought an application for bail in
    relation to the extradition proceedings.  That application was heard by Benotto
    J., as she then was, on August 16, 2012.

[9]

Evidence at the bail hearing before Benotto J.
    showed that, at the time of his arrest under the Act, the Applicant was in
    breach of his then-existing domestic bail because he was unsupervised and in
    possession of an internet-enabled iPhone.  Unbeknownst to his father (his surety),
    the Applicant had not disconnected the internet data service on his iPhone
    immediately upon his release in March 2012, as required by the terms of his
    interim release on the domestic charges.  Instead, he had let his data plan run
    out two months after his release and, even after it had run out, his iPhone
    could continue to connect to the internet through WiFi.  Neither of the
    Applicants parents was aware of these facts until the day of the bail
    hearing.  His father admitted he was not well-versed in matters involving
    technology and the internet.

[10]

By order dated August 16, 2012, Benotto J.
    dismissed the bail application because she found that there was a substantial
    likelihood that the Applicant would re-offend and the protection of the public
    required his continued detention.

[11]

Following a committal hearing, by order dated
    May 24, 2013, the Applicant was committed for extradition to the United States.

[12]

The Applicant appealed the committal order and
    brought a fresh bail application to this court.

[13]

By order dated December 5, 2014, Laskin J.A.
    dismissed the application.  He viewed the merits of the appeal to be frivolous
    but found that otherwise the Applicant met the test for release.

[14]

On June 30, 2015, a panel of this court ordered
    the Applicants discharge, finding that there was insufficient evidence for
    committal for the offence of child luring.

[15]

That same day, the United States asked Canada to
    provisionally arrest the Applicant under the Act.  In the provisional arrest
    request material, the United States advised that they had conducted a complete
    search of the Applicants computer.  As a result of the search, 80 new alleged
    victims had been located, 70 of whom were in the United States and 10 of whom
    who were located out of the United States.

[16]

That same day  June 30, 2015  the arrest
    warrant was issued and the Applicant was arrested.

[17]

A new Record of the Case (ROC) was prepared. 
    It contained the same allegations as in the prior ROC but also relied on
    evidence seized from the Applicants computer in Canada.  As well, the ROC
    contained a chart of similar fact evidence showing how the Applicant had used
    the same
modus operandi

to intimidate,
    threaten and abuse the young female victims in sexually sadistic ways.

[18]

A second extradition hearing followed.  By order
    dated October 25, 2016 (the Order), the Applicant was again committed for extradition
    to the United States.

[19]

On November 23, 2016, the Applicant filed a
    notice of appeal of the Order.  Although a number of grounds of appeal are
    raised, it is significant that the Applicant does not allege that there is
    insufficient evidence to justify committal.

[20]

The Applicant was to have completed his
    submissions to the Minister, pursuant to s. 43 of the Act, by November 24,
    2016.  However, at the Applicants request, the Minister has permitted the
    Applicant until late January 2017 to make his submissions on surrender.

[21]

It is within this context that the Applicant
    brings this application for judicial interim release.  His proposed plan of
    release is to reside with his parents  his proposed sureties  at their home,
    on house arrest.  He would be fitted with an electronic monitoring device and
    be subject to an electronic monitoring system at his residence.  He would not
    possess any device capable of connecting with the internet.

The Test for Release under s. 20 of the Act

[22]

Section 20(a) of the Act provides that the test
    to be applied is that set out in s. 679 of the
Criminal Code
, R.S.C., 1985, c. C-46, with any modifications that the
    circumstances require.  Accordingly, the Applicant must show that:

a)

his appeal is not frivolous;

b)

he is not a flight risk; and

c)

his detention is not necessary in the public
    interest.

Analysis

[23]

As I would decide this application primarily on
    the third criterion, I will deal with the first and second criteria summarily.

(a)

The appeal is not frivolous

[24]

The Attorney General submits that there is no
    merit to any of the grounds of appeal raised by the Applicant and,
    consequently, the appeal is frivolous.   My assessment of the grounds of appeal
    is that they are weak, but I cannot say that they are so devoid of merit as to
    be frivolous within the meaning of the statutory provisions governing bail.  I
    will return to the matter of the merits of the appeal below.

(b)

The Applicant has failed to show that he is
    not a flight risk

[25]

The Applicant took the position that because
    there had been no material change since Laskin J.A. heard his prior bail
    hearing, this court is bound by Laskin J.A.s determination that he is not a
    flight risk.

[26]

I do not agree.

[27]

As this is a new bail hearing under s. 20 of the
    Act, arising from a new order of committal, in my view, this court is to
    consider the application on a
de novo

basis. 
    It is not bound by Laskin J.A.s findings on any of the three criteria.  The
    Applicants simple reliance on Laskin J.A.s determination of this criterion is
    not only misplaced in law, it also fails on the facts.  There has been a
    material change in the circumstances since Laskin J.A. heard the Applicants
    prior bail application.  The strength of the case against the Applicant has
    increased and the magnitude of the Applicants alleged wrongdoing is
    substantially increased.

[28]

The Attorney General argues that the risk of
    flight is greater now than ever before.  The Attorney General says that the
    court should be concerned about flight, given the Applicants demonstrated
    disregard for court orders.  The Attorney General points to the fact that when the
    Applicant was initially arrested under the Act, he possessed, without supervision,
    a device permitting him to access the internet.  He was, therefore, in wilful
    breach of his bail conditions.  The Attorney General also notes that having
    been committed for extradition a second time, the Applicant is that much closer
    to the possibility of a term of incarceration of up to 30 years in an American prison. 
    Finally, the Attorney argues that given the limitations on electronic
    monitoring, the proposed conditions do not adequately alleviate the risk of
    flight.

[29]

To these considerations, I would add that the
    Applicant is well-versed in travel.  He lived for a number of years in
    Australia, in various locations.  When he returned to Canada in 2011, he worked
    in Labrador and Thunder Bay, among other places.  I acknowledge that his
    passport was seized by police in March of 2012.  However, flight is not limited
    to places outside of Canada.

[30]

In the circumstances, the Applicant has failed
    to show that he is not a flight risk.

(c)

Detention is necessary in the public
    interest

[31]

In my view, this application clearly fails on
    the third criterion  the Applicants continued detention is necessary in the
    public interest.

[32]

The public interest has two components: (1)
    public safety; and (2) public confidence in the administration of justice:
R.
    v. Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont. C.A.); and
R.
    v. Forcillo
, 2016 ONCA 606, at para. 9.  A consideration
    of both components leads to the conclusion that the Applicants continued
    detention is necessary.

[33]

Before turning to those components, it is
    important to recognize the change in the ROC before the court at the second
    committal hearing.  That ROC contained information that was not before either
    Benotto J. or Laskin J.A. because it arose from the United States search of
    the Applicants computer.  At the time of his bail application before Benotto
    J., she was aware that evidence of seventeen identified victims had been
    located on the Applicants computer, in addition to the allegations relating to
    the two sisters in Virginia.  Laskin J.A. considered only the evidence relating
    to the latter two victims.

[34]

The ROC now shows that, as a result of searching
    the Applicants computer, United States officials have concluded that the
    Applicant sexually exploited a great many more young girls.  The United States
    authorities have located approximately 300 different chats that reveal a
    similar
modus operandi

of intimidating,
    threatening and abusing vulnerable young girls in sexually sadistic ways.  In
    its provisional arrest request materials, the United States alleged that the
    Applicant successfully exploited a further 80 victims, 70 in the United States
    and 10 in other countries.

[35]

It is within that context that I consider first
    public safety and thereafter public confidence in the administration of
    justice.

(i)

Public safety

[36]

This application raises grave concerns about
    public safety.  The evidence against the Applicant demonstrates an ongoing systematic
    pattern of intimidating, threatening and exploiting vulnerable children through
    sadistic sexual acts.  The risk of re-offending, if the Applicant is released,
    has not been met by the proposed plan of supervision.

[37]

It is acknowledged that electronic monitoring
    cannot restrict the Applicants movements and is subject to the possibility of
    technological deterioration or failure.  Further, the proposed plan of
    supervision leaves open a real risk that the Applicant might obtain access to
    the internet.  There will still be an internet line into his parents home,
    where he would reside.  His parents both work outside the home, with the result
    that he will be home alone for at least 20 hours each week.  Access to wireless
    internet now is ubiquitous, as the Attorney General argued.  All of this is
    compounded by the sureties admittedly limited technological capabilities which
    translates into their limited capacity to supervise the Applicants use of
    technology.

(ii)

Public confidence in the administration of
    justice

[38]

In considering whether continued detention is
    necessary to maintain the publics confidence in the administration of justice,
    the court must consider how a reasonable and properly-informed member of the
    public would perceive the granting of bail:
R. v. St-Cloud
, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 87.  In my view, such a
    person would not be satisfied that it is in the public interest to release the
    Applicant pending his appeal.

[39]

This case involves grave criminal conduct.  The
    alleged offences are violent, heinous and involved vulnerable victims.  There
    is compelling evidence that the scope of the Applicants criminal conduct is
    much more extensive and serious than was known at the time of his previous bail
    applications.  There is also strong and compelling evidence that the Applicant
    engaged in, and was successful in, the lengthy, continuous, systematic
    exploitation of young girls that involved brutal and sadistic sexual violence.

[40]

In
France v. Ouzghar
, 2009 ONCA 137, 95 O.R. (3d) 187, at para. 14, this court indicated
    that where legitimate public interest concerns are raised in connection with
    the applicants release, a harder look at the merits of the application will
    be justified.  While I have found that the proposed grounds of appeal meet the
    low threshold of not frivolous, in my view, the merits are very weak.  The
    evidence is extremely strong that the Applicant committed the offences for
    which extradition is sought.  The issues raised on appeal relate to the
    legality of the gathering of the evidence, not to the sufficiency of the
    evidence that establishes that he committed the offences.

[41]

The totality of the circumstances leaves me in
    no doubt that this application must be dismissed.

Disposition

[42]

For these reasons, the application is
    dismissed.

Released: December 23, 2016 (E.E.G.)

Eileen E. Gillese J.A.





[1]
Although these reasons refer, for the sake of simplicity, to the
    Applicants computer, the United States Record of the Case relies upon
    evidence from a laptop and a separate hard drive.  The Applicant has indicated
    that, on appeal, he will challenge the validity of the searches conducted in
    Ontario that led the police to seize the Applicants electronic devices.


