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EXTRADITION AND CRIMINAL MUTUAL LEGAL ASSISTANCE - Abuse of process

Monday, May 10, 2021 @ 9:18 AM  


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Appeal by the accused, Tyndall, from an extradition committal order with an application for judicial review of the Minister’s related surrender order. In 2013, police in Virginia initiated an investigation into sexually explicit text and social media messages received by a girl, age 9. The investigation linked the messages to an IP address in Alberta. The accused was identified as associated with the messages after police executed a search warrant and seized computer drives and other external media. The accused was charged with child pornography offences, Internet luring, invitation to sexual touching and transmission of sexual material to a child. The accused pleaded guilty to possession of child pornography and Internet luring in Alberta provincial court and was sentenced to 3.5 years’ imprisonment. The accused was released in 2016 and granted full parole in 2017. Thereafter, the United States requested extradition of the accused to stand trial in Pennsylvania for coercion and enticement of a minor. The Record of the Case alleged the accused solicited a girl, age 14, in Pennsylvania to engage in sexually explicit conduct and produce sexually explicit material. The extradition judge refused to exclude evidence seized in the 2013 search or stay the proceeding as an abuse of process. In 2019, the accused was committed for extradition. In 2020, the Minister issued an unconditional surrender order. The accused appealed the committal order and sought judicial review of the surrender order. 

HELD: Appeal and application dismissed. The Crown consented that the initial warrantless law enforcement request to the accused’s Internet service provider constituted an unreasonable search. The extradition judge’s decision not to exclude the evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (Charter) disclosed no reviewable error given that the search predated the change in the law governing warrantless law enforcement requests to Internet service providers. No error arose from declining to stay the committal proceeding as an abuse of process. Despite the overlap in timeframe and similarity in offences, the Canadian proceeding did not try and punish the accused for conduct related to the Pennsylvania complainant, and the evidence relied upon in respect of that complainant was obtained by American authorities rather than via the initial Canadian search. For similar reasons disposing of the issue of double jeopardy, the Minister’s surrender decision was reasonable.

United States of America v. Tyndall, [2021] A.J. No. 345, Alberta Court of Appeal, J. Strekaf, E.A. Hughes and K.P. Feehan JJ.A., March 15, 2021. Digest No. TLD-May102021001