Canada (Attorney General) v. Viscomi, 2015 ONCA 484

JudgeSimmons, Cronk and Blair, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateJune 30, 2015
JurisdictionOntario
Citations2015 ONCA 484;(2015), 338 O.A.C. 200 (CA)

Can. (A.G.) v. Viscomi (2015), 338 O.A.C. 200 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.045

The Attorney General of Canada on behalf of the United States of America (applicant/respondent) v. Marco Viscomi a.k.a. Mark Viscomi (respondent/appellant)

(C57211; C57910)

Marco Viscomi (applicant/appellant) v. The Attorney General of Ontario (respondent/respondent) and The Attorney General of Canada (respondent/respondent)

(C59973)

Brandon Lane (applicant/appellant) v. The Attorney General of Ontario (respondent/respondent) and The Attorney General of Canada (respondent/respondent)

(C59982; 2015 ONCA 484)

Indexed As: Canada (Attorney General) v. Viscomi

Ontario Court of Appeal

Simmons, Cronk and Blair, JJ.A.

June 30, 2015.

Summary:

The U.S. sought extradition of Viscomi and Lane in two unrelated proceedings arising out of charges involving internet luring, child exploitation and child pornography. During the course of the extradition proceedings, the U.S. requested assistance under the Mutual Legal Assistance in Criminal Matters Act to obtain the fruits of searches and seizures conducted by Ontario police. The applications were allowed on an ex parte basis. Both Viscomi and Lane challenged the constitutionality of s. 18 (the gathering order provision) and s. 19 (the sending order provision) of the Act.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 2829, ordered Viscomi's extradition. Viscomi's application for disclosure of the evidence obtained in the Ontario searches for purposes of the committal hearing was dismissed. A committal order was also made regarding Lane. Code, J., dismissed the application regarding the constitutionality of ss. 18 and 19. The Minister ordered Viscomi's surrender. Viscomi appealed from the committal order, from the dismissal of his application for disclosure and sought judicial review of the surrender order. Lane did not oppose extradition. Both Viscomi and Lane appealed from Code, J.'s dismissal of their constitutional challenge.

The Ontario Court of Appeal allowed Viscomi's appeal from the committal order, quashing the order. The surrender order was set aside. The court dismissed the appeal from the dismissal of the disclosure order and the appeal from Code, J.'s decision.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - Application of - Territorial limits - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A 17 year old girl in Virginia Beach, U.S., communicated with someone in an internet chat room - Without prior judicial authorization, Virginia Beach police traced the communication through a residential internet service provider (ISP) in Ontario to an internet protocol address - Viscomi was the subscriber to the address, which was assigned to his account during the time in question - That information, along with driver's licence information, was shared with Ontario police and formed the basis for the record of the case filed by the U.S. in support of its application for an order committing Viscomi for extradition on charges of internet luring, child exploitation and child pornography - The extradition judge granted the application - On judicial review of the Minister's surrender order, Viscomi argued that he was entitled to the benefit of the change in law with the decision in R. v. Spencer (M.D.) (2014 S.C.C.), under which a warrant was required to obtain ISP subscriber information - The Ontario Court of Appeal rejected the argument - In Spencer, the court declined to exclude the evidence obtained under s. 24(2) of the Charter because the police reasonably believed that they did not require a warrant - That was the same case here - There was no basis on which the warrantless ISP search would lead to a different result - Further, it was well-established that the Charter did not govern the conduct of foreign authorities conducting a lawful investigation within their sovereign jurisdictions, even where Canadian authorities may have cooperated with them - See paragraphs 40 to 50.

Criminal Law - Topic 5599.4

Evidence and witnesses - Foreign evidence assistance agreements and legislation - Evidence gathering orders - Rights of persons affected (incl. standing and cross-examination) - The U.S. sought extradition of Viscomi and Lane in two unrelated proceedings arising out of charges involving internet luring, child exploitation and child pornography - During the course of the extradition proceedings, the U.S. requested assistance under the Mutual Legal Assistance in Criminal Matters Act to obtain the fruits of searches and seizures conducted by Ontario police - The applications were allowed on an ex parte basis - Neither application judge exercised the discretion open to them under the Act to give notice to Viscomi and Lane - Viscomi and Lane each challenged the constitutionality of s. 18 (the gathering order provision) and s. 19 (the sending order provision) of the Act on the grounds that the gathering and sending regime, as presumptively ex parte proceedings, lacked adequate accountability measures (notice and the right to challenge the authorizations), resulting in violations of ss. 7 and 8 of the Charter - The Ontario Court of Appeal rejected the arguments, agreeing with Code, J., who dismissed Viscomi's and Lane's application, that the "gathering" and "sending" powers found in s. 18 and s. 20 complied with the constitutional requirement of procedural fairness because of the "broad array of s. 7 and s. 8 safeguards that easily satisfy the contextual test" for procedural fairness - The court summarized the safeguard features of the legislation - See paragraphs 51 to 62.

Evidence - Topic 200

Inferences and weight of evidence - Inferences - Whether reasonable inference or speculation - [See second Extradition - Topic 2930 ].

Extradition - Topic 2648

Evidence and procedure before examining judge - Evidence - General - Disclosure - A 17 year old girl in Virginia Beach, U.S., communicated with someone in an internet chat room - Without prior judicial authorization, Virginia Beach police traced the communication through a residential internet service provider in Ontario to an internet protocol address - Viscomi was the subscriber to the address, which was assigned to his account during the time in question - That information, along with driver's licence information, was shared with Ontario police and formed the basis for the record of the case filed by the U.S. in support of its application for an order committing Viscomi for extradition on charges of internet luring, child exploitation and child pornography - Viscomi applied for disclosure of the evidence obtained in the Ontario searches for purposes of the committal hearing - The application was dismissed as "frivolous and vexatious" - The Ontario Court of Appeal dismissed Viscomi's appeal, stating, "I see no error in the exercise of her discretion not to order production of the materials seized by the Ontario police to further some subsequent Charter challenge when: (a) the requesting state made it clear that it was not relying on the fruits of that search to support the committal application; and (b) there was no air of reality with respect to Mr. Viscomi's suggested Charter violations." - See paragraphs 37 to 39.

Extradition - Topic 2706

Evidence and procedure before examining judge - Procedure - Test for extradition - [See both Extradition - Topic 2930 ].

Extradition - Topic 2930

Provisional arrest and detention - Warrant of committal - Grounds for issue of - Evidence - The Ontario Court of Appeal discussed the test to be applied on an application for committal under the Extradition Act, stating, "Under s. 29(1), the judge shall order committal into custody to await surrender where there is evidence admissible under the Act 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. In short, the judge must be satisfied that there is some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.... Where the evidence is circumstantial in nature, the extradition judge must conduct a limited weighing exercise to ensure the circumstantial evidence is reasonably capable of supporting the inferences the prosecution seeks to have drawn. However, at this stage of the extradition process it is not the judge's role to choose between equally reasonable inferences. As long as the inference in favour of the Crown is reasonable, the judge must proceed on that basis." - See paragraphs 19 and 20.

Extradition - Topic 2930

Provisional arrest and detention - Warrant of committal - Grounds for issue of - Evidence - A 17 year old girl in Virginia Beach, U.S., communicated with someone in an internet chat room - Virginia Beach police traced the communication through a residential internet service provider (ISP) in Ontario to an internet protocol (IP) address - Viscomi was the subscriber to the address, which was assigned to his account during the time in question - That information, along with driver's licence information, was shared with Ontario police and formed the basis for the record of the case (ROC) filed by the U.S. in support of its application for an order committing Viscomi for extradition on charges of internet luring, child exploitation and child pornography - The extradition judge granted the application based on an inference that Viscomi was using the IP address at the time in question - The Ontario Court of Appeal allowed Viscomi's appeal - The inference that Viscomi was the user of the IP address assigned to him at the relevant time was not one that could reasonably and logically be drawn from the facts that he was the subscriber and that the residential address for the subscriber account was that on his driver's licence - The extradition judge misapprehended the evidence - Nothing in the ROC established that the subscriber's residential address and the address associated with the IP address were one and the same - A reasonable trier of fact, properly instructed, could not convict Viscomi on the basis of the ISP and related driver's licence information alone - The committal order was quashed - See paragraphs 14 to 36.

Cases Noticed:

R. v. Ward (D.) (2012), 296 O.A.C. 298; 112 O.R.(3d) 321; 2012 ONCA 660, refd to. [para. 7].

R. v. Spencer (M.D.), [2014] 2 S.C.R. 212; 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, consd. [para. 7].

R. v. Wilson (1983), 51 N.R. 321; 26 Man.R.(2d) 194; 9 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 9, footnote 1].

Ontario (Attorney General) et al. v. Viscomi, [2014] O.A.C. Uned. 690; 2014 ONCA 765, refd to. [para. 9].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 19].

Canada (Attorney General) v. Leonard (2012), 296 O.A.C. 258; 112 O.R.(3d) 496; 2012 ONCA 622, refd to. [para. 20].

R. v. Munoz (L.), [2006] O.T.C. 112; 86 O.R.(3d) 134 (Sup. Ct.), refd to. [para. 21].

United States of America v. Huynh (2005), 202 O.A.C. 198; 200 C.C.C.(3d) 305 (C.A.), refd to. [para. 21].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 22].

R. v. Hicks (1988), 28 O.A.C. 118; 42 C.C.C.(3d) 394 (C.A.), affd. [1990] 1 S.C.R. 120; 104 N.R. 399; 37 O.A.C. 143, refd to. [para. 32].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161 (Sup. Ct.), refd to. [para. 32].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 46].

R. v. Terry (R.S.), [1996] 2 S.C.R. 207; 197 N.R. 105; 76 B.C.A.C. 25; 125 W.A.C. 25, refd to. [para. 47].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297, refd to. [para. 47].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 47].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 47].

United States of America et al. v. Wakeling, [2014] 3 S.C.R. 549; 465 N.R. 1; 363 B.C.A.C. 1; 624 W.A.C. 1, refd to. [para. 48].

Lane v. Canada (Attorney General) (2014), 323 O.A.C. 142; 121 O.R.(3d) 721; 2014 ONCA 506, leave to appeal denied [2014] S.C.C.A. No. 425, refd to. [para. 59].

United States of America et al. v. McAmmond (2004), 193 O.A.C. 129; 192 C.C.C.(3d) 149 (C.A.), refd to. [para. 59].

United Kingdom v. Ramsden (1996), 92 O.A.C. 270; 108 C.C.C.(3d) 289 (C.A.), refd to. [para. 59].

R. v. Jackpine (R.) (2004), 184 O.A.C. 354; 70 O.R.(3d) 97; 182 C.C.C.(3d) 449 (C.A.), revd. (2006), 347 N.R. 201; 210 O.A.C. 200; 207 C.C.C.(3d) 225; 2006 SCC 15, refd to. [para. 59].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 178 C.C.C.(3d) 193, refd to. [para. 59].

S.F. v. Canada (Attorney General) et al. (2000), 128 O.A.C. 329; 141 C.C.C.(3d) 225 (C.A.), refd to. [para. 59].

R. v. Tse (Y.F.A.), [2012] 1 S.C.R. 531; 429 N.R. 109; 321 B.C.A.C. 1; 547 W.A.C. 1; 2012 SCC 16, refd to. [para. 59].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 59].

Baron et al. v. Minister of National Revenue et al. (1993), 146 N.R. 270; 78 C.C.C.(3d) 510 (S.C.C.), refd to. [para. 59].

R. v. Baron et al. - see Baron et al. v. Minister of National Revenue et al.

Statutes Noticed:

Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), sect. 18, sect. 20 [para. 53].

Authors and Works Noticed:

Hill, Casey et al., McWilliams' Canadian Criminal Evidence (5th Ed. 2014-15) (Looseleaf), pp. 31-63 to 31-65 [para. 22].

Watt, David, Watt's Manual of Criminal Evidence (2014), §9.01 [para. 22].

Counsel:

Julianna A. Greenspan, Joseph S. Wilkinson, and Bradley Greenshields, for the appellant, Marco Viscomi (C57211, C57910 and C59973);

John Norris and Meara Conway, for the appellant, Brandon Lane (C59982);

Richard Kramer and Nancy Denison, for the respondent, The Attorney General of Canada (C59973 and C59982), and for the respondent, The Attorney General of Canada on behalf of the United States of America (C57211), and on behalf of the Minister of Justice (C57910);

Robert Hubbard and Michael Fawcett, for the respondent, The Attorney General of Ontario (C59973 and C59982).

This application and these appeals were heard on June 8 and 9, 2015, by Simmons, Cronk and Blair, JJ.A., of the Ontario Court of Appeal. On June 30, 2015, Blair, J.A., released the following reasons for judgment for the court.

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14 practice notes
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • June 10, 2020
    ...v. A., 2020 ONCA 331 Keywords: Criminal Law, Extradition, Fraud, Extradition Act, 1999, c. 18, s. 55, 32(1)(a), 3(3), U.S.A. v. Viscomi, 2015 ONCA 484, R. v. M. (M.), 2015 SCC 62, U.S.A. v. Yang (2001), 56 O.R. (3d) 52 CIVIL DECISIONS Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldi......
  • Court Of Appeal Summaries (June 10-14)
    • Canada
    • Mondaq Canada
    • July 4, 2019
    ...in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), Extradition Act, S.C. 1999, c. 18, ss. 44(1), 48, United States v. Viscomi, 2015 ONCA 484, R. v. Larosa (2002), 163 O.A.C. 108 (C.A.), United States of America v. Anekwu, 2009 SCC 41, R. v. Mathurin, 2015 ONCA 581, R. v. Kutynec (1992......
  • Table of cases
    • Canada
    • Irwin Books International & Transnational Criminal Law. Third Edition
    • June 25, 2020
    ...R v Vézina, [1986] 1 SCR 2, 25 DLR (4th) 82, [1986] SCJ No 2 ........................ 485 R v Viscomi, 2015 ONSC 61, aff’d 2015 ONCA 484, leave to appeal to SCC refused, [2015] SCCA No 397 ................................................. 580, 581 R v Walton (1905), 11 OLR 94, 10 CCC 269, [......
  • Teva Canada Ltd. v. Pfizer Canada Inc., 2016 FCA 161
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • May 31, 2016
    ...appellate courts (District of West Vancouver (Corporation of) v. Liu, 2016 BCCA 96, 47 M.P.L.R. (5th) 1; United States v. Viscomi, 2015 ONCA 484, 126 O.R. (3d) 427; R. v. G.S., 2013 NUCA 5, 100 C.R. (6th) 397), the Federal Court (K.K. v. Canada (Citizenship and Immigration), 2014 FC 78, 446......
  • Request a trial to view additional results
10 cases
  • Teva Canada Ltd. v. Pfizer Canada Inc., 2016 FCA 161
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • May 31, 2016
    ...appellate courts (District of West Vancouver (Corporation of) v. Liu, 2016 BCCA 96, 47 M.P.L.R. (5th) 1; United States v. Viscomi, 2015 ONCA 484, 126 O.R. (3d) 427; R. v. G.S., 2013 NUCA 5, 100 C.R. (6th) 397), the Federal Court (K.K. v. Canada (Citizenship and Immigration), 2014 FC 78, 446......
  • United States of America v Ferguson,
    • Canada
    • Court of Appeal (British Columbia)
    • May 3, 2023
    ...to the evidence before her. This is not a case where there was a critical gap in the evidence, as in United States of America v. Viscomi, 2015 ONCA 484. To the contrary, the ROC contained ample evidence that supported a prima facie case for committal. When considered in light of the whole o......
  • United States v. Lim and Baruca,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • April 28, 2022
    ...evidence is reasonably capable of supporting the inferences the prosecution seeks to have drawn”: United States v. Viscomi, 2015 ONCA 484 at para. 20.  The extradition court is not to weigh competing inferences that arise from the evidence “other than in the limited ......
  • R. v. Nguyen, 2017 ONSC 1341
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • March 8, 2017
    ...a leap and does not amount to reasonable and probable grounds to believe. The applicant relies upon United State of America v. Viscomi, 2015 ONCA 484, in support of this position. [56] The applicant’s reliance on Viscomi is misplaced. Viscomi arises in the context of an extradition case whe......
  • Request a trial to view additional results
3 firm's commentaries
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • June 10, 2020
    ...v. A., 2020 ONCA 331 Keywords: Criminal Law, Extradition, Fraud, Extradition Act, 1999, c. 18, s. 55, 32(1)(a), 3(3), U.S.A. v. Viscomi, 2015 ONCA 484, R. v. M. (M.), 2015 SCC 62, U.S.A. v. Yang (2001), 56 O.R. (3d) 52 CIVIL DECISIONS Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldi......
  • Court Of Appeal Summaries (June 10-14)
    • Canada
    • Mondaq Canada
    • July 4, 2019
    ...in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), Extradition Act, S.C. 1999, c. 18, ss. 44(1), 48, United States v. Viscomi, 2015 ONCA 484, R. v. Larosa (2002), 163 O.A.C. 108 (C.A.), United States of America v. Anekwu, 2009 SCC 41, R. v. Mathurin, 2015 ONCA 581, R. v. Kutynec (1992......
  • Court Of Appeal Summaries (June 29 – July 3, 2015)
    • Canada
    • Mondaq Canada
    • July 8, 2015
    ...in relation to the contract, and forfeiture would be a grossly disproportionate outcome in light of the error. United States v. Viscomi, 2015 ONCA 484 [Simmons, Cronk and Blair Counsel: J. A. Greenspan, J. S. Wilkinson, B. Greenshields for the appellant Marco Viscomi (C57211, C57910 and C59......
1 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books International & Transnational Criminal Law. Third Edition
    • June 25, 2020
    ...R v Vézina, [1986] 1 SCR 2, 25 DLR (4th) 82, [1986] SCJ No 2 ........................ 485 R v Viscomi, 2015 ONSC 61, aff’d 2015 ONCA 484, leave to appeal to SCC refused, [2015] SCCA No 397 ................................................. 580, 581 R v Walton (1905), 11 OLR 94, 10 CCC 269, [......

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