



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Curow, 2022 ONCA 219

DATE: 20220315

DOCKET: M53253 (C70377)

Roberts J.A. (Motions Judge)

BETWEEN

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

Applicant (Responding Party)

and

Samantha Curow

Respondent
    (Moving Party)

Patrick J. Ducharme, for the moving party

Christopher Bundy, for the responding party

Heard: March 8, 2022 by video conference

ENDORSEMENT

[1]

Ms. Curow seeks interim judicial release pending her appeal of the March
    2, 2022 order made by Conlan J. This order committed her into custody to await
    the Minister of Justices decision on surrender under the
Extradition Act
,
    S.C. 1999, c. 18, as amended. Ms. Curow is sought for extradition to the United
    States for prosecution for extortion. This charge arises out of Ms. Curows
    alleged participation in attempts to extort money from a celebrity athlete in
    consideration for the agreement not to publish a highly compromising videotape.
    Two sex workers had filmed a sexual encounter with the athlete. According to
    the Record of the Case (ROC), afterwards, one of the women, Alexandra Wells, contacted
    Ms. Curow for advice on how to extort the athlete for money using the videotape
    as leverage. She will testify that Ms. Curow then reached out to the athlete via
    text message and telephone and demanded $2,000,000 in exchange for not
    publishing the video.

[2]

Ms. Curows appeal from the committal order has not yet been perfected
    and no hearing date for the appeal has been scheduled.

[3]

To obtain interim judicial release, in accordance with s. 20 of the
Extradition
    Act
, Ms. Curow must satisfy the following criteria under s. 679(3) of the
Criminal
    Code
, R.S.C., 1985, c. C-46:

i.

The appeal
    is not frivolous;

ii.

The appellant
    will surrender into custody as required by the terms of the release order; and

iii.

The appellants
    detention is not necessary in the public interest.

[4]

The Crown opposes this application. While conceding that Ms. Curow has
    met her onus on the latter two criteria, the Crown argues that she has not
    demonstrated that her appeal is not frivolous.

[5]

Ms. Curow submits that her appeal is meritorious. She argues that the application
    judge erred in his application of the test for committal because there was no
    admissible evidence in the ROC that could, if believed, result in Ms. Curows
    conviction. According to Ms. Curow, the ROC of the Case establishes that Ms.
    Curow was not involved in the sexual activity or the filming of that activity
    with the victims consent, and that there was no evidence of extortion on her
    part: rather, she merely acted as a mediator between the parties in order to
    try to assist the victim to recover the damaging tape. Moreover, the evidence
    of the two witnesses who implicate Ms. Curow, Ms. Wells and Malisha Brooks (who
    is believed to be involved in the extortion attempt), is so unreliable that it
    should have been disregarded by the application judge.

[6]

I am not persuaded by these submissions. Although I appreciate that the
    bar is low, Ms. Curow has failed to demonstrate that her appeal is not
    frivolous. An appeal is not frivolous if it raises an arguable issue or ground
    of appeal:
United States v. Viscomi
, 2014 ONCA 879, 315 C.C.C. (3d)
    530, at para. 13. Ms. Curows appeal does not meet this standard.

[7]

The application judge applied the correct test for an order of committal
    as articulated under s. 29(1) of the
Extradition Act
. First, he
    determined that there was available and reliable evidence of conduct by Ms.
    Curow that, had it occurred in Canada, would justify committal for trial in
    Canada on the offence set out in the Authority to Proceed, namely extortion
    contrary to s. 346(1) of the
Criminal Code
. Second, he was satisfied
    that there was evidence in the ROC that was reasonably capable of supporting
    the inference that Ms. Curow was the person who committed the alleged offence
    and was the person named in the ROC (Ms. Curow did not dispute the latter
    point).

[8]

The application judge appropriately followed the guidance set out by the
    Supreme Court of Canada in
M.M. v. United States of America
, 2015 SCC
    62. As he recognized, his role was to determine whether there was a
prima
    facie
case of extortion and not to conduct a trial. As he also noted, the
    starting point was to consider the certified evidence in the ROC to be
    presumptively reliable. That presumption could only be rebutted by evidence
    that showed fundamental inadequacies or defects in the ROC and where the
    evidence was so defective or so manifestly unreliable that it would be
    dangerous or unsafe to act on it: see
M.M.
, at paras. 40, 63.

[9]

That was not the case here. I agree with the application judges
    assessment that the ROC set out sufficient evidence of Ms. Curows alleged
    involvement in the offence. This evidence was unchallenged by any evidence from
    Ms. Curow. The anticipated witness evidence includes that from the victim of
    the extortion attempts, his former partner, the FBI personnel involved in the
    investigation, and the two co‑participants in the scheme (Ms. Wells and
    Ms. Brooks). These witnesses are likely to testify that Ms. Curow carried out
    the offence by calling and texting the victim with demands for money in
    exchange for the non-publication of the video, using a telephone number that
    was associated to her and her Instagram account. Both Ms. Wells and Ms. Brooks
    identified Ms. Curow as Staci, someone they both knew before the extortion
    attempts. They also identified her telephone number. Ms. Wells identified Ms.
    Curows photo from her Instagram page @realstacidoll. Ms. Brooks, who will
    testify that Ms. Curow recruited her participation, has as a contact Staci in
    her cellular phone with the same telephone number used in the extortion
    attempts and listed on Ms. Curows Instagram page.

[10]

In
    essence, Ms. Curow submits that the application judge should have undertaken
    the kind of analysis that is reserved for trial. She argues that he should have
    assessed the credibility and reliability of the witnesses who implicated her in
    the extortion attempts and that he should have accepted her characterization of
    the telephone calls and texts. As already noted, that was not his role on the
    committal application. As he was required to do, the application judge carried
    out a limited weighing of the evidence to assess whether it was reasonably
    capable of supporting the inferences the trier of fact will be asked to make;
    it was not his task to weigh competing inferences:
Viscomi
, at paras.
    16, 20. Ms. Curow has not identified any arguable error in the application
    judges analysis or reasons that could possibly warrant appellate intervention.

[11]

As
    a result, the motion for interim judicial release is dismissed.

[12]

The
    parties agree that this appeal should be expedited. The parties may request an
    expedited date from the appeals scheduling office.

L.B. Roberts J.A.


