



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Mathurin, 2015 ONCA 581

DATE: 20150826

DOCKET: C57793

Weiler, Feldman and Benotto JJ.A.

BETWEEN

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

Respondent

and

Yvette Mathurin

Appellant

Boris Bytensky, for the appellant

Richard Kramer, for the respondent

Heard: December 12, 2014

On appeal from the orders of Justice Michael G. Quigley
    of the Superior Court of Justice, dated April 30, 2013 and September 23, 2013,
    with reasons reported at 2013 ONSC 2575 and 2013 ONSC 5810

Benotto J.A.:

A.

Overview

[1]

The United States of America requested the extradition of the appellant
    in connection with fraud-related charges. The investigation leading to her
    arrest involved law enforcement officials from Canada and the United States.
    Following a request for assistance by U.S. investigators, Canadian authorities
    obtained a production order for the subscriber information associated with an
    impugned IP address, pursuant to s. 487.012 of the
Criminal Code
,
    R.S.C. 1985, c. C-46. This information corroborated the appellants involvement
    in the fraud scheme. Investigators subsequently obtained and executed a warrant
    to search the appellants residence pursuant to s. 487 of the
Criminal Code
.

[2]

Following the execution of the warrant, there was no report to a justice
    as required by s. 489.1 of the
Criminal Code.
The information
    obtained through these orders was shared with American law enforcement
    officials. The information was then relied upon by the U.S. in the Record of
    Case (ROC) in support of the extradition request.

[3]

The appellant alleged that the actions of the Canadian authorities
    breached her rights under ss. 7, 8 and 10(b) of the
Canadian Charter of
    Rights and Freedoms
. She sought disclosure of the evidence gathered in
    Canada in order to pursue the
Charter
claims. The extradition judge
    dismissed her disclosure application on the basis that there was no air of
    reality to the allegations. He went on to find that there was sufficient
    evidence to order the appellants committal for extradition.

[4]

The appellant argues that the extradition judge erred by refusing to
    order disclosure and by issuing the order for committal. The respondent submits
    that the judge correctly exercised his discretion to refuse to grant disclosure
    and that there was sufficient evidence to order the committal.

[5]

After this appeal was argued, the case of
R. v. Garcia-Machado
was heard by this court. One of the issues before the court was whether the
    failure to file a timely report pursuant to section 489.1(1) constituted a
    breach of s. 8 of the
Charter.
The courts decision was released on
    August 7, 2015 and reported at 2015 ONCA 569. The court held that the failure
    to file a timely report breached s. 8 of the
Charter
, however, following a section 24(2) analysis, the
    court held that the evidence obtained should not be excluded
.
For the reasons that follow, I would not interfere with the extradition judges
    discretionary decision not to order disclosure, save in one respect:  the
    effect of the failure to report mandated by s. 489.1. As will be discussed, I
    would refer this issue back to the extradition judge.

B.

The Investigation

[6]

In 2008, the United States Postal Inspection Service (USPIS) began
    investigating a $32-million fraudulent debt-collection scheme involving
    counterfeit cheques, many of which originated from the Toronto area.
    Individuals would pose as potential clients seeking a law firms assistance
    with the collection of a debt. Once retained, the alleged debtor would contact
    the law firm and mail a counterfeit cheque in purported satisfaction of the
    debt. The law firm would then telephone a person posing as a bank employee, who
    would verify the validity of the cheque. The law firm would deposit the cheque
    into its trust account and wire the funds to the initial client. The cheque
    would be returned as counterfeit, resulting in a loss to the law firm and the
    bank.

[7]

It is alleged that the appellant posed as the bank employee who
    authenticated the fraudulent cheques over the phone. Investigators linked the
    appellant to the scam through the email account yvette.mathurin@gmail.com,
    through which someone had engaged in correspondence with the main email account
    used to perpetrate the fraud, dmsecurities2000@yahoo.com. American
    investigators determined that both email accounts were accessed from Canada
    through IP addresses that belonged to Rogers Communications Inc.

[8]

In April 2010, USPIS asked Toronto Police Services (TPS) for
    investigative assistance through the Toronto Strategic Partnership (TSP). The
    TSP is a voluntary, informal partnership of various police forces and
    government agencies, including the USPIS and TPS. It is tasked with
    investigating cross-border fraud originating out of Toronto. TPS commenced a
    parallel investigation into the fraud.

[9]

At the request of American investigators, Canadian police obtained a
    production order pursuant to s. 487.012 of the
Criminal Code
to
    identify the account holder of the IP addresses that were used to access the
    specified email accounts. Rogers Communications Inc. confirmed that the IP
    address associated with use of the email account yvette.mathurin@gmail.com was
    assigned to the appellant.

[10]

Canadian
    police shared this information with the USPIS. Further investigation by
    American authorities confirmed that the correspondence involving the
    appellants email account was linked to the fraud. Canadian investigators
    conducted surveillance of the appellant on April 21 and 26, 2010, which
    confirmed that she lived at the specified address provided by Rogers
    Communication Inc.

[11]

In
    September 2010, Canadian police used this information to obtain a warrant for
    the search of the appellants residence under s. 487 of the
Criminal Code
,
    resulting in the seizure of the appellants computers, cellphones and
    documents. Certain elements of the information obtained through this search
    formed part of the ROC in the form of anticipated testimony by Canadian police.

[12]

Section
    489.1 of the
Criminal Code
requires that a peace officer who seeks to
    detain any item seized under a warrant report to the issuing justice, and s.
    487.012 provides that the same reporting requirement applies in connection with
    a production order. No such reports were ever filed in relation to the
    materials seized pursuant to the production order or the search warrant.

[13]

Canadian
    investigators interviewed the appellant in October 2010. She attended the
    interview on her own free will. She was advised of her
Charter
rights
    to obtain and instruct counsel, as well as the availability of Legal Aid, but
    she declined to contact counsel.

[14]

On
    May 16, 2012, the appellant was arrested under the
Extradition Act
,
    S.C. 1999, c. 18. Information from the interview was initially included in the
    ROC, but was later disavowed. Further, the Attorney General assured the
    extradition judge that none of the real or documentary evidence produced or
    seized as a result of the production order and search warrant would be adduced
    in the U.S. prosecution. The Canadian-gathered information would, however, be
    adduced through the witness testimony of the Canadian detective involved in the
    investigation of the case and the execution of the orders.

[15]

Throughout
    the course of the investigation, Canadian authorities acted pursuant to the
Criminal
    Code
, rather than the
Mutual Legal Assistance in Criminal Matters Act
,
    R.S.C. 1985, c. 30 (4th Supp.) (MLACMA). The MLACMA provides for the
    implementation of treaties for mutual legal assistance between Canada and
    foreign governments, one of which is the
Treaty Between the Government of
    Canada and the Government of the United States on Mutual Legal Assistance in
    Criminal Matters
, C.T.S. 1990/19 (the Canada-US Treaty). Under ss. 12
    and
14 of the MLACMA, a peace officer executing a search and
    seizure warrant under that act is required to file a report concerning the
    execution of the warrant with the issuing court. Section 15 requires judicial
    approval before information can be sent to the requesting state.

C.

The appellants challenge to her commital

[16]

The
    appellant challenged her committal and sought disclosure of all evidence
    pertaining to her file in relation to the Canadian investigation,
beyond that contained in the ROC and the three Supplemental Records
    of Case (SROCs)
.
Her extradition hearing was
    scheduled for October 11, 2012, but was adjourned as a result of the disclosure
    application. At the hearing of the disclosure application,
she argued
    that disclosure was warranted to allow her to pursue her
Charter
claims.
    She raised the following alleged violations of ss. 7, 8 and 10(b) of the
Charter
:

[17]

The
    production order and search warrant should have been obtained under the MLACMA

rather than the
Criminal Code
because there was no
bona fide
Canadian investigation. Additionally, Canadian police improperly shared with
    American investigators the information they obtained, without first complying
    with the MLACMA;

[18]

The
    police authorities failed to make full and frank disclosure to the issuing
    justice in the course of obtaining the production order and the search warrant;

[19]

The
    police authorities failed to report to the issuing justice after the execution
    of the orders, contrary to s. 489.1 of the
Criminal Code
, which taints
    the legality of the original orders;

[20]

The
    appellants waiver of her s. 10(b) right to obtain and instruct counsel without
    delay was not informed and therefore invalid.

D.

Decision of the Extradition Judge

[21]

The
    extradition judge dismissed the appellants application for disclosure. He
    observed that it is settled law that a person sought for extradition is only
    entitled to disclosure of the ROC (and SROCs, if applicable) tendered in
    support of the request:
United States v. Dynar
, [1997] 2 S.C.R. 462.
    The only exception to this rule, as held by the Supreme Court of Canada in
United
    States v. Kwok
, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 102, is when an
    applicant can establish an air of reality to a
Charter
claim or
    where there are justiciable
Charter
issues at play.

[22]

The
    extradition judge set out the three-part test for obtaining additional
    disclosure in extradition proceedings, as articulated by this court in
R.
    v. Larosa
(2002), 166 C.C.C. (3d) 449 (Ont. C.A.), at para. 76. The
    allegations of
Charter-
infringing state 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. The onus to satisfy this test rests on the applicant.

[23]

The
    extradition judge noted that even when there is an air of reality to a
Charter
claim, an extradition judge still has discretion not to order additional
    disclosure:
United States v. McAmmond
(2005), 192 C.C.C. (3d) 149
    (Ont. C.A.), at para. 31. He reviewed the appellants various allegations and
    held that there was no air of reality to the
Charter
claims.
    Therefore, no additional disclosure beyond the ROC and SROCs was warranted.

(1)

Alleged
    violations of the appellants ss. 7 and 8
Charter
rights

[24]

The
    appellant asserted that her ss. 7 and 8
Charter
rights were violated
    on the grounds that the Canadian authorities (i) should have acted under and in
    compliance with the MLACMA, (ii) did not make full and frank disclosure in the
    Information to Obtain (ITO) both the production order and the search warrant
    and (iii) failed to file a report to a justice after executing the production
    order and search warrant in compliance with s. 489.1 of the
Criminal Code
.

[25]

First,
    the extradition judge held that the Canadian authorities were not required to
    proceed under the MLACMA in order to obtain the Canadian production order and
    search warrant. He also held that they did not have to supply the resulting
    information to American authorities in accordance with the procedures set out
    in the MLACMA.

[26]

The
    extradition judge observed that the MLACMA is not the exclusive means for
    gathering and sending evidence from Canada to a foreign state. It is meant to
    supplement, not replace, existing arrangements and practices between Canadian
    and foreign authorities, as demonstrated by s. 3(2) of the Act:

3. (2) Nothing in this Act or an agreement shall be
    construed so as to abrogate or derogate from an arrangement or practice
    respecting cooperation between a Canadian competent authority and a foreign or
    international authority or organization.

[27]

Additionally,
    Article III, s. 1 of the corresponding Canada-U.S. Treaty states that it does
    not detract from other agreements, arrangements or practices under which
    parties may provide assistance to each other.

[28]

The
    extradition judge was satisfied that Canadian investigation was not a sham,
    but was a valid investigation parallel to the ongoing American investigation.
    He was not persuaded that American authorities controlled or directed the
    investigation. Thus, Canadian police could proceed under the
Criminal Code
and
    did not have to obtain the production order and search warrant under the
    MLACMA, or report to a court before considering whether to transmit the
    evidence obtained to a requesting state:
United States v. Fong
, 2000
    BCSC 612, affd, 2001 BCCA 684, 162 B.C.A.C. 32, leave to appeal refused,
    [2002] S.C.C.A. No. 30.

[29]

The
    extradition judge distinguished the seemingly contrary case of
R. v. Budd
,
    [2004] O.J. No. 3519 (S.C.), because in that case there was no allegation of
    any Canadian offence, and foreign authorities had made a formal request under
    the MLACMA and then shared evidence informally.

[30]

In
    this case, Canadian police were permitted to share the information they
    gathered in accordance with their established practices, particularly under TSP
    cooperation arrangements. There is no legal requirement for police to obtain
    judicial authorization to send evidence to a foreign country in such
    circumstances.  The importance of sharing of information between jurisdictions
    was recently affirmed in
United States v. Wakeling
, 2014 SCC 72.  As
    Moldaver J. said:

Multi-jurisdictional cooperation between law enforcement
    authorities furthers the administration of justice in all of the jurisdictions
    involved. It must not be forgotten that Canada is often on the receiving end of
    valuable information. (para 57)

Inter-agency cooperation is critical to the prevention,
    detection, and punishment of cross-border crime information from foreign law
    enforcement authorities. (para 82)

[31]

Second,
    the extradition judge rejected the appellants contention that the ITOs for the
    production order and the search warrant did not contain full and frank
    disclosure. The appellant alleged that the ITOs failed to indicate that the
    information was sought at the request of American investigators and that the
    information would be shared with those investigators. The extradition judge
    rejected this argument, observing that the ITOs disclosed the existence of a
    joint investigation into alleged fraud. The ITOs specifically mentioned that
    both Canadian and American authorities were investigating, and indicated that
    the American Federal Bureau of Investigation (FBI) and UPSIS had provided
    Canadian authorities with information. Although not specifically stated, the
    clear inference was that sharing both ways would take place.

[32]

Third,
    with respect to the failure to report to the issuing justice, the extradition
    judge recognized that  at that time - there were two lines of authority on the
    question of whether a failure to comply with a procedural step following a
    search retroactively invalidates the legality of the search itself. He adopted
    the line of cases supporting the proposition that the failure to file a report
    does not automatically and retroactively undermine the validity of an initially
    valid search: See
R. v. Backhouse
, (2005), 194 C.C.C. (3d) 1 (Ont.
    C.A.);
R. v. Church of Scientology (No. 6)
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.);
R. v. Tripp
, 2006 NBPC 35; and
R. v.

Karim
,
    2012 ABQB 470, 546 A.R. 57. He recognized that there may be situations where
    the other line of authority would prevail, but noted that the items seized in
    this case would not be relied upon in the prosecution of the appellant. In the
    circumstances, and based on the law at the time,  he found that there was no
    air of reality to the claim that the appellants
Charter
rights had
    been breached by this procedural deficiency.

(2)

Alleged violations of the appellants 10(b) rights

[33]

The
    appellant alleged that police authorities violated her right to obtain and
    instruct counsel under s. 10(b) of the
Charter
during the October 2010
    interview.

[34]

The
    extradition judge held that there was no air of reality this claim. The
    appellant attended the interview with the police on her own accord. She was
    advised of the international nature of the case, and she was informed that
    anything she said could be used against her. She was also advised of her s.
    10(b)
Charter
right to obtain and instruct counsel without delay, as
    well as the availability of Legal Aid. She acknowledged her understanding of
    the above matters and declined to contact counsel. There was no air of reality
    to the s. 10(b) claim.

[35]

Even
    if there were an air of reality to the s. 10(b) claim, the extradition judge
    would not have exercised his discretion to order further disclosure because
    American authorities had disavowed any reliance upon the evidence from the
    interview.

(3)

Committal for extradition

[36]

The
    extradition judge was satisfied that there was sufficient reliable evidence of
    conduct that would justify committal for trial in Canada on charges of fraud
    contrary to s. 380 of the
Criminal Code
, the offence set out in the
    Authority to Proceed, and that the appellant was the person sought for
    extradition. He issued a warrant of committal for her extradition.

E.

Issues Raised by the Appellant ON APPEAL

[37]

Although
    multiple issues were raised by the appellant, counsel focused on one main issue
    during oral submissions  whether disclosure of the Canadian investigation
    should have been ordered because there was an air of reality to the appellants
Charter
claims.

F.

Analysis

[38]

The
    decision of whether to order disclosure beyond the ROC is discretionary, even
    when the applicant has demonstrated an air of reality to a
Charter
claim:
McAmmond
, at para. 31.  An appellate court may only intervene
    in a discretionary decision if the court below misdirected itself or came to a
    decision that is so clearly wrong that it amounts to an injustice:
Penner
    v. Niagara Regional Police Services Board
, 2013 SCC 19, [2013] 2 S.C.R.
    125, at para. 27; see also
United States

v. Talashkova
, 2014
    ONCA 74, 118 O.R. (3d) 622, at para 7.

[39]

The
    appellant submits that there was an air of reality to the claims that the her
Charter
rights were violated by (i) the decision by investigators not to proceed
    by way of the MLACMA, (ii) the failure to provide full and frank disclosure in
    the ITOs of the intention to share information with U.S. authorities and (iii)
    the failure to report back to the issuing justice after executing the orders
    and detaining the seized items.

[40]

For
    the reasons that follow, I would reject the first two of these arguments. There
    was no requirement to proceed under the MLACMA in the circumstances, the
    evidence was lawfully gathered and shared. I would remit that matter back to
    the extradition judge on the question of whether the failure to return to the
    issuing justice affects the outcome of his decision.

(1)

The
Mutual Legal Assistance in Criminal Matters Act


[41]

The
    appellant submits that the MLACMA and the corresponding Canada-US Treaty offer
    procedural safeguards that are otherwise unavailable under the
Criminal
    Code
or the common law. As discussed, pursuant to the MLACMA, when the
    U.S. requests a search and seizure, it must send a formal request for
    assistance to the Minister of Justice. If the request is approved and a warrant
    is sought, the Canadian peace officer executing the warrant is required to file
    a subsequent report to the issuing court.  Further, sharing a record or item
    obtained under this process with a foreign state requires court approval. The
    appellant submits that the failure to follow this process under the MLACMA
    violated her
Charter
rights.

[42]

The
    extradition judge was correct to reject this submission and I adopt his analysis. 
    Subsection 3(2) of the MLACMA makes clear that the MLACMA is meant to
    supplement, rather than abrogate or derogate from, any existing arrangement or
    practice between Canadian and foreign police forces or prosecutorial
    authorities. Similarly, Article III, s. 1 of the Canada-US Treaty recognizes
    that the agreement does not detract from other agreements, arrangements or
    practices. Thus, the Canadian investigators were not required to follow the
    procedures in the MLACMA and there is no air of reality to the claim that the
    appellants
Charter
rights were breached when they did not do so.

[43]

The
    appellant also raised the issue of the failure of the investigators to obtain
    judicial authorization before sharing the information obtained under the
    production order and search warrant. The Supreme Court of Canada has recently
    endorsed the importance of facilitating international cooperation through the
    sharing of information relating to criminal matters. In
Wakeling
, the
    court was unanimous in acknowledging that co-operation between Canadian and
    foreign law enforcement is essential. The majority recognized that law
    enforcement authorities are entitled to share information obtained through a
    reasonably executed search with foreign authorities for the purposes of law enforcement,
    without prior judicial authorization. When considering an alleged breach under
    section 8 of the
Charter
, the Chief Justice said at paragraphs 93 and
    94:

The warrant allows the police to obtain the information and to
    use it for purposes of law enforcement. The individual whose communications are
    lawfully intercepted under a valid warrant cannot complain that this
    unreasonably breaches his privacy. To put it metaphorically, a valid warrant
    sanitizes the state intrusion on privacy, as long as the execution of the
    warrant is reasonable and the information is used for purposes of law
    enforcement.

It has never been suggested that this principle is confined to
    the use of information in Canada. The reality is that crime does not stop at
    national borders, and police routinely share information that they have
    lawfully obtained under warrant with their counterparts in other countries.
    Provided information is shared for purposes of law enforcement, the individual
    cannot complain that the sharing violates his s. 8 right to privacy.

(2)

The failure to make full and frank disclosure in the ITOs

[44]

The
    appellant submits that the ITOs for the production order and search warrant did
    not clearly disclose that the information obtained would be transferred to
    American authorities. However, as the extradition judge noted, the ITOs did
    disclose the existence of a joint investigation, so it was open to the
    extradition judge to hold that the issuing justice could infer that sharing
    would take place. I see no reviewable error in his conclusion that the search
    warrant and the production order were properly obtained.

(3)

The failure to file reports

[45]

The
    appellant also submits that the failure to file reports to the issuing justice
    or obtain a corresponding order for ongoing detention of the items seized
    violated the appellants
Charter
rights in light of the fact that
    authorities detained the seized items.

[46]

When
    the application was heard by the extradition judge and when this appeal was
    argued, the cases were divided on whether a failure to make a report to the
    issuing justice renders the initial execution of a search or production order
    unlawful. One line of authority, including the decisions in
R. v. Correia
,
    2005 ONCJ 435, 133 C.R.R. (2d) 365, and
R. v.

Guiller
(1985)
,
25 C.R.R. 273 (Ont. Dist. Ct.), supported the proposition that a failure to
    follow mandatory procedures when detaining seized materials renders the initial
    search unlawful.

[47]

Conversely,
    in
R. v. Church of Scientology (No. 6)
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.), this court held, at pp. 546-547, that if a search warrant is
    valid, it cannot be invalidated by any conduct subsequent to its issue. Citing
Scientology
,
    this court in
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1 (Ont. C.A.),
    held, at para. 115,  that a breach of
Charter
rights does not
    automatically follow from non-compliance with s. 489.1 of the
Criminal Code
:

It does not necessarily follow, however, that the continued
    unlawful detention violated the appellants
Charter
rights. The
    initial search and seizure was lawful and complied with the
Charter
. I
    need not decide whether the subsequent failure to comply with s. 489.1 could
    render the initial lawful seizure unreasonable. However, see
R. v. Church
    of Scientology
(No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at 543-547.
    Even if the detention of the clothing did violate the appellants rights under
    s. 8, I would not exclude the evidence obtained by the analysis of the
    appellants jacket. I will more fully develop my reasons for that conclusion
    when I consider s. 24(2) of the
Charter
below.

[48]

The
    extradition judge followed the line of authority which held that there is no
    automatic breach of an individuals
Charter
rights where an unlawful
    detention of seized items occurs after an initially valid search.

[49]

In
    light of the decision in
R. v. Garcia-Machado
, the law has now been
    clarified.  I would refer the matter back to the extradition judge to
    reconsider, on the facts of this case, the effect of the failure to report on
    the request for disclosure, applying the law as now clarified.

G.

Conclusion

[50]

The
    information and evidence acquired by the Canadian investigators was legally
    obtained under the
Criminal Code
. There was no obligation for Canadian
    authorities to proceed under, and comply with, the MLAMCA. The extradition
    judge will determine the effect of the failure to report to an issuing justice
    in compliance with s. 489.1.

[51]

I
    would allow the appeal in part and refer the issue of section 489.1 back to the
    extradition judge.

Released: K.F. August 26, 2015

M.L. Benotto J.A.

I agree K.M. Weiler J.A.

I agree K. Feldman J.A.


