United States v. Lane

United States v. Lane Collection Decisions of the Court of Appeal Date 2014-06-30 Neutral citation 2014 ONCA 506 Docket numbers C57814 Judges Simmons, Janet M.; Gillese, Eileen E.; Hourigan, C. William Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: United States v. Lane, 2014 ONCA 506 DATE: 20140630 DOCKET: C57814 Simmons, Gillese and Hourigan JJ.A. BETWEEN The Attorney General of Canada on behalf of the United States of America Appellant and Brandon William Lane, a.k.a. “BossHiaka” Respondent and The Attorney General of Ontario Intervener Mark Sandler and Nancy Dennison, for the appellant John Norris, for the respondent Robert Hubbard and Michael Fawcett, for the intervener Heard: June 16, 2014 On appeal from the judgment of Justice Brian W. Abrams of the Superior Court of Justice, dated September 26, 2013. By the Court: OVERVIEW [1] The respondent is wanted in the United States to be prosecuted for serious child pornography charges: engaging in a child exploitation enterprise, conspiracy to advertise the distribution of child pornography, and conspiracy to distribute child pornography. He brought an application to stay the extradition proceedings against him. [2] The extradition judge made findings of misconduct against several Crown law officers and police officers and ordered the stay. [3] The Attorney General of Canada appeals. [4] In our view, neither the findings of misconduct nor the stay can stand. For the reasons that follow, the appeal is allowed, the stay set aside, and the matter remitted to the Superior Court of Justice for a new extradition hearing. BACKGROUND IN BRIEF [5] In December 2009, the United States began an investigation into a secured online child pornography bulletin board called “Dreamboard”, whose internet domain is owned by a web hosting company in the State of Georgia. Records seized in the United States in January and June 2010 showed that Dreamboard had about 582 members. [6] Dreamboard was divided into different forums where members could make postings. One forum was dedicated to videos of minors under the age of 13. Another required that any postings required the children to be crying or in distress. [7] Dreamboard was administered by four people, including an individual using the screen name “BossHiaka”. The United States alleges that BossHiaka regularly posted comments on the Dreamboard and personally posted over 2,600 messages between September 2008 and June 2010. The posts included hundreds of images and videos of child pornography. BossHiaka is also alleged to have used the Dreamboard to encourage members of the site to sexually abuse children and then share the images of the abuse. [8] The United States alleges that the respondent is BossHiaka. [9] Detective Constable Morgan of the Kingston Police reviewed hundreds of postings by BossHiaka. Based on that information and other investigative work, DC Morgan swore an information to obtain a search warrant for the respondent’s residence in Kingston, Ontario. The warrant was signed on November 22, 2010, and the search was conducted on November 26, 2010. Among the items seized were the respondent’s computer and several external hard drives containing almost five terabytes of data. Although much of the data seized was encrypted and could not be accessed, one hard drive that had been connected to the respondent’s desktop computer contained a list of pedophilic newsgroups which were subscribed to using the name BossHiaka. [10] On December 2, 2010, the respondent was arrested pursuant to an extradition provisional arrest warrant. The materials in support of the application for the warrant made reference to the earlier search of the respondent’s residence. [11] At his extradition hearing, the respondent challenged the validity of the search warrant and sought to have the seized items excluded as evidence (the “Charter motion”). This challenge was heard by the extradition judge and he reserved judgment. [12] While the Charter motion was under reserve, the Attorney General of Ontario (“AG Ontario”) brought a successful mutual legal assistance treaty (“MLAT”) application before a different Superior Court Justice for a gathering and sending order authorizing it to send material seized pursuant to the Canadian search warrant to authorities in the United States. The application was made pursuant to ss. 17 and 20 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.). [13] The Charter motion was subsequently granted, and defence counsel asked counsel for the Attorney General of Canada (“AG Canada”) about the return of certain seized items. It was then that counsel for the AG Canada told defence counsel that the seized material had been sent to the United States pursuant to a gathering and sending order. In light of the Charter ruling, counsel for the AG Canada sought and obtained the seized material. It was returned to Canada unopened. [14] The respondent brought a motion for a stay of the extradition proceedings for abuse of process. [15] The extradition judge found that counsel for the AG Canada and the AG Ontario, as well as a police officer, had engaged in a “stratagem” to not disclose the MLAT proceedings so as to prevent the respondent from challenging the sending order. He found that the Crown law officers and the police officer engaged in “a purposeful tactic or strategy to withhold crucial information from” the extradition court, the respondent and his counsel. He also found that there had been “mismanagement” of the “parallel proceedings before [the] Court” by the AG Canada “authorizing and encouraging” the MLAT proceeding while the Charter motion before him was ongoing and under reserve. Based on these findings, he concluded that there had been an abuse of process and that a stay was necessary to vindicate the court’s integrity and the public’s confidence in the legal process. [16] The AG Ontario was granted intervener status in the appeal. THE ISSUES [17] The AG Canada submits that the extradition judge: 1. made palpable and overriding errors of fact with respect to the conduct of the Crown law officers and the police officer; 2. erred in finding that the Crown law officers and the police officer had acted improperly, without giving these individuals notice or a chance to respond; 3. exceeded his jurisdiction by considering what occurred in the MLAT proceedings when determining whether to impose a stay in the extradition proceedings; 4. misapplied the law governing the imposition of a stay; and 5. erred in relying on his decision that the evidence obtained in the search was inadmissible under s. 24(2) of the Charter when concluding that a stay was warranted. ANALYSIS 1. Did the Extradition Judge err in his Findings of Misconduct? [18] In our view, the answer to this question must be “yes”.[1] [19] The extradition judge found that lawyers employed by the AG Canada, including Jacqueline Palumbo, a Team Leader at the Department of Justice Canada’s International Assistance Group, and Richard Kramer and Monika Rahman, who were co-counsel for the AG Canada in the extradition proceeding, “engaged in a stratagem to withhold the very existence of the MLAT proceedings from the [respondent], his counsel and this Court” (para. 113). [20] At para. 148 of his reasons, the extradition judge said his finding of abuse of process was premised on “mismanagement” of the “parallel proceedings before [the] Court” by the AG Canada “authorizing and encouraging” the MLAT proceeding while the Charter motion before him was ongoing and under reserve. He expanded on this finding at para. 156, saying “[t]he conduct of counsel for the Minister of Justice and the police in this case amounts to a purposeful tactic or strategy to withhold crucial information from this Court, the [respondent] and his counsel.” [21] The extradition judge also concluded that Amy Alyea, counsel at the AG Ontario’s Crown Law Office (Criminal), was implicated in this “stratagem” as a result of an e-mail that she sent advising that no evidence should be shared with the United States before a sending order was obtained, because “the lack of propriety in pre-sending sharing of information between states seems to be an effective argument” on which the respondent’s counsel could rely in challenging the validity of any sending order obtained (para. 118). [22] He further found that DC Morgan’s failure to discuss the extradition proceedings and the Charter motion in the affidavit she made as lead investigator in support of the MLAT application “was, in my view, a purposeful, material omission” (para. 131). [23] The extradition judge acknowledged that Shawn Porter, counsel with the Crown Law Office (Criminal) at AG Ontario, prepared a letter for inclusion in the MLAT application which stated, in part, that: The Warrant to search in this case has been the subject of substantial challenge by the Defence in the context of Mr. Lane’s extradition hearing. The Defence alleges the materials were obtained in breach of Mr. Lane’s s. 8 rights. The Crown does not admit the validity of this contention and, moreover, takes the position that it is irrelevant to the consideration of whether the materials in question out [sic] to be sent to the United States of America pursuant to Treaty. However, the Crown wishes to ensure that the judge considering this ex parte Application was aware of this fact in exercising his or her discretion as to whether to give notice of this Application to Send to Mr. Lane. [Emphasis in original.] [24] However, the extradition judge stated that he saw no evidence that this letter was “actually received by the Court” (para. 135) and that, in any event, the letter was “so obtuse as to deny [the MLAT judge] the opportunity to exercise her discretion” (para. 136). He also found that the letter was “meant to lend an air of legitimacy to the manner in which the Minister’s representative was proceeding without … providing [the MLAT judge] with sufficient information” upon which to exercise her discretion (para. 138). [25] In our view, none of these findings are supported on the record and they must be overturned. Indeed, the evidence is to the contrary. [26] First, in respect of the findings made against Mr. Porter, the record before the extradition judge included a signed copy of Mr. Porter’s letter, obtained from the court file. This copy included a notation directing the letter to the MLAT judge. In his reasons, the extradition judge did not refer to this copy of the letter. In our view, that copy of the letter created a compelling inference that the letter was both received by the Superior Court of Justice and directed to the MLAT judge. [27] Further, Mr. Porter’s letter is not obtuse. In saying this, we acknowledge that it might have been preferable had the record (including the letter) placed before the MLAT judge contained somewhat more detail of the nature and status of the Charter motion. [28] In any event, the letter served to alert the MLAT judge, not only in clear terms but also in bold type, to the fact that the evidence in question was the subject of a s. 8 Charter challenge and that the Crown wanted the MLAT judge to be aware of that fact when exercising her discretion as to whether to give notice of the application to the respondent. The letter provided the MLAT judge with enough information to request further details had she considered that necessary or appropriate. [29] Additionally, we see no basis in the record for the extradition judge’s conclusion that the letter “was meant to lend an air of legitimacy to the manner in which the Minister’s representative was proceeding without … providing [the MLAT judge] with sufficient information” upon which to exercise her discretion. As we have said, the letter put the MLAT judge on notice of the pending Charter motion clearly and in bold face. In light of those factors, the extradition judge’s finding of a deliberate attempt to mislead is unreasonable. [30] Second, we cannot see how Ms. Alyea’s e-mail, in which she advises investigators and counsel to comply with the MLAT regime, can be read as implicating her in a “stratagem” to keep information from the court. On a fair reading of the email, it is clear that Ms. Alyea is urging full compliance with the MLAT process. [31] Third, DC Morgan was not a witness on the stay application, and she was never cross-examined about the allegation that she engaged in a “purposeful, material omission” of the Charter challenge in her affidavit. The extradition judge erred in drawing such an inference absent evidence, especially since Mr. Porter’s letter disclosed the matter. [32] Fourth, the findings described above made against Mr. Kramer, Ms. Rahman and Ms. Palumbo are all unfounded. [33] Mr. Kramer and Ms. Rahman had a duty by treaty to use their best efforts to maintain the confidentiality of the MLAT application. Paragraph 5 of Article 6 of the Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, 18 March 1985, Can. T.S. 1990 No. 19 (entered into force 24 January 1990) states: the “Requested State shall use its best efforts to keep confidential a request and its contents except when otherwise authorized by the Requesting State.” It was up to the MLAT judge to determine who should receive notice and be given the opportunity to be heard before a sending order is issued: United Kingdom v. Ramsden (1996), 108 C.C.C. (3d) 289 (Ont. C.A.), at p. 308. [34] Even if this confidentiality obligation did not exist, Mr. Kramer’s uncontested affidavit evidence was that he had only a passing knowledge of the MLAT proceeding, and Ms. Palumbo’s uncontested affidavit evidence was that she was not aware that the evidence that formed the basis of the MLAT application was the same as that which was the subject to the Charter motion. One cannot be said to conspire when one is complying with the law, and one cannot be part of a conspiracy without being aware of the purported object of the conspiracy. 2. Findings of Misconduct without advance Notice [35] In the stay proceedings, counsel for the respondent did not assert that Crown counsel had acted in bad faith. Rather, he argued that an abuse of process arose from (i) the authorization and facilitation of the MLAT request at the same time that the lawfulness of the search was being litigated, (ii) the failure of extradition counsel to notify the extradition judge of the MLAT application, and (iii) the failure to ensure that the two processes unfolded with due regard for one another. [36] The extradition judge concluded on his own initiative that there had been a purposeful withholding of crucial information and a conspiracy or stratagem involving the police and counsel for the AG Canada and the AG Ontario to hide the existence of the MLAT application. None of the counsel who gave affidavit evidence were cross-examined, nor was their testimony disputed. Given the respondent’s concession that none of those involved had acted in bad faith, the Crown could not have been expected to call these witnesses or DC Morgan. Further, the AG Ontario was not a party to these proceedings, nor were any of the counsel that worked on this file. [37] In our view, in the circumstances of this case, before making findings of such serious misconduct, the affected individuals should have been given notice and the opportunity to respond to such allegations. In reaching this conclusion we are mindful that a finding of intentional prosecutorial misconduct will “adversely affect Crown counsel’s reputation and may have serious professional criminal and employment consequences”: R. v. Leduc (2003), 66 O.R. (3d) 1 (C.A.), at para. 84. 3. The relationship between MLAT proceedings and extradition proceedings [38] The extradition judge was of the view that when determining whether there was an abuse of process in the respondent’s committal proceeding, he was entitled to consider the conduct of the MLAT proceedings. He said that it was important for the extradition judge to be advised of developments in the MLAT process, and that the two proceedings should proceed “with due regard one for the other” (para. 159). [39] This view is mistaken. Extradition proceedings and MLAT proceedings are governed by separate statutes, each with its own purpose, procedures and safeguards to ensure that the rights of individuals are protected. [40] The Mutual Legal Assistance in Criminal Matters Act provides investigative tools to help Canada’s treaty partners in criminal investigations. Proceedings under the Act are presumptively ex parte. [41] Under the gathering and sending regime at issue here, the AG Ontario was required to begin by applying ex parte for a gathering order (s. 17(2)). The court is empowered to impose such terms and conditions on the gathering order as it considers desirable (s. 18(5)), including a condition requiring that any subsequent application for a sending order be made on notice to a target of the investigation or to a person with an interest in the evidence that has been gathered: see Russian Federation v. Pokidyshev (1999), 138 C.C.C. (3d) 321 (Ont. C.A.), at para. 33. [42] After the evidence is gathered and a report submitted to the court, it is possible to seek a sending order, authorizing the sending of the gathered evidence to the requesting state (s. 20(1)). Unless the court imposes a condition in the gathering order requiring that notice be given before a sending order is sought, the sending order may also be requested ex parte: United States of America v. McAmmond (2005), 192 C.C.C. (3d) 149 (Ont. C.A.), at para. 35. [43] The existence of the Charter motion was a relevant factor for the MLAT judge to consider in deciding whether to give the respondent notice of the sending hearing. It was therefore appropriate that the AG Ontario advised the MLAT judge that the evidence in question had been obtained by a search warrant and that this evidence was the subject of a Charter challenge. [44] The MLAT proceeding, however, was not relevant to the function of the extradition judge, and accordingly it was not necessary to advise him of its existence. The task of the extradition judge is to determine if there is sufficient evidence to justify committal. The existence of an MLAT request has no bearing on the question of whether sufficient evidence exists to justify committal. [45] Further, an extradition judge’s jurisdiction to consider Charter issues is not inherent; it flows from s. 25 of the Extradition Act, S.C. 1999, c. 18, which gives the judge jurisdiction to consider Charter issues that “pertain directly to the circumscribed issues relevant at the committal stage of the extradition process”: United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57. This means that where a stay of proceedings is sought, there should be “a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself”: United States of America v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449, at para. 45, leave to appeal refused, [2011] S.C.C.A. No. 316. Such a nexus has been found to exist where the evidence introduced at the committal hearing was obtained through the misconduct of the requesting state (Khadr), where threats or inducements are made to force the person sought to abandon the right to a committal hearing (United States of America v. Cobb, 2001 SCC 19, [2001] 1 SCR 587), and where the committal hearing itself was the result of misconduct by the requesting state (United States of America v. Tollman (2006), 212 C.C.C. (3d) 511 (Ont. S.C.)). [46] We see no nexus between the MLAT proceeding and this committal proceeding. The MLAT proceeding did not affect the nature or sufficiency of the evidence before the extradition judge. [47] Accordingly, we see no obligation on the part of the AG Canada to have informed the extradition judge of the MLAT proceeding and the conduct of the MLAT proceeding was not relevant to whether a stay of the extradition proceedings should be ordered. 4. Application of the Test for a Stay [48] The test for imposing a stay was recently reviewed in R. v. Babos, 2014 SCC 16, at para. 32: 1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; 2) There must be no alternative remedy capable of redressing the prejudice; and 3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”. [Citations omitted.] [49] In considering the first step, it must be borne in mind that there are two categories of prejudice that can result in the granting of a stay: prejudice to the accused’s right to a fair trial, and the residual category of prejudice to the integrity of the justice system. The parties agree that because the evidence was returned to Canada unopened, a stay could only be granted in this case on the basis of the residual category of prejudice. [50] Therefore, the issue before the extradition judge was “whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: Babos, at para. 35. To allow a proceeding to continue in the face of such conduct would be to “lend judicial condonation to the impugned conduct”, and it is for this reason that the court must consider granting a stay: Babos, at para. 38. [51] The extradition judge’s conclusion that the state had engaged in offensive conduct that the judiciary should not condone rested primarily on his findings with respect to the conduct of DC Morgan and counsel for the AG Canada and the AG Ontario. As explained above, none of these findings can stand. Accordingly, there is no basis on which to conclude that there was offensive state conduct that could justify a stay. [52] The extradition judge’s factual errors also affected the balancing exercise performed at the third stage of the test, where the court must “decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct”: Babos, at para. 41. In the absence of the extradition judge’s erroneous findings, little or nothing remains to weigh in favour of a stay. [53] We note two additional errors that the extradition judge made that affected his conduct of the balancing exercise. [54] First, the extradition judge found that there was no evidence that the respondent could not be tried in Canada on Canadian charges. The evidence does not support that finding. The affidavit provided by DC Morgan in respect of the MLAT application, which was before the extradition judge, stated that the Canadian charges brought against the respondent had been withdrawn because the investigators were not able to decrypt the hard drives found in the respondent’s residence. While it was possible that this obstacle could have been overcome, it was also possible that it could not be overcome. Given that the extradition judge had evidence before him indicating that Canadian charges might not be viable, he should have considered this risk before imposing a stay. [55] Second, the extradition judge stated that despite ordering a stay, the U.S. charges remained outstanding and it was “always open to the U.S. to seek the [respondent’s] extradition in the future”. However, we note that in R. v. Regan, [2002] 1 S.C.R. 297, at para. 117, the court observed that “a stay is ultimate: the charges are stayed and may never be prosecuted.” We recognize that this statement was made in the context of charges being stayed, and not in the context of an extradition hearing. However, even if it is arguable that a stay would not be a bar to the U.S. attempting later to seek the respondent’s extradition, the extradition judge erred by failing to consider the improbability of that taking place. [56] For these reasons, it was an error to impose a stay. 5. The extradition judge’s s. 24(2) decision [57] As we have already concluded that a stay should not have been imposed, it is unnecessary to consider the appellant’s arguments concerning whether, and to what extent, the extradition judge relied on his earlier s. 24(2) decision in deciding to impose a stay, and whether such reliance was appropriate. DISPOSITION [58] Accordingly, the appeal is allowed and the stay set aside. The matter is remitted to the Superior Court of Justice for a new extradition hearing. Released: June 30, 2014 (“E.E.G.”) “Janet Simmons J.A.” “E.E. Gillese J.A.” “C.W. Hourigan J.A.” [1] The respondent argued that under s. 55 of the Extradition Act, S.C. 1999, c. 18, it is not open to the AG Canada to seek a new extradition hearing based on palpable and overriding errors of fact. We reject this submission. In light of the extent of the extradition judge’s fact finding errors, it is beyond question that they constitute a miscarriage of justice empowering this court to allow the appeal under s. 55(1)(a)(iii) of the Extradition Act.