United States v. Mathurin

United States v. Mathurin Collection Decisions of the Court of Appeal Date 2015-08-26 Neutral citation 2015 ONCA 581 Docket numbers C57793 Judges Weiler, Karen Merle Magnuson; Feldman, Kathryn N.; Benotto, Mary Lou Subject Criminal Decision Content 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 appellant’s involvement in the fraud scheme. Investigators subsequently obtained and executed a warrant to search the appellant’s 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 appellant’s 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 court’s 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 judge’s 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 firm’s 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 appellant’s 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 appellant’s residence under s. 487 of the Criminal Code, resulting in the seizure of the appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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, aff’d, 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 appellant’s 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 appellant’s Charter rights had been breached by this procedural deficiency. (2) Alleged violations of the appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s rights under s. 8, I would not exclude the evidence obtained by the analysis of the appellant’s 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 individual’s 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.”