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Friday, June 30, 2017 @ 8:33 AM  

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Application by Lane for judicial review of the Minister of Justice’s decision to order his surrender to the United States (US) to face child pornography charges. Lane was charged in the US and Canada in relation to his leadership role in an international child pornography organization that operated a website called “Dreamboard”. It was alleged Lane had uploaded thousands of pornographic files to the website, encouraged others to share similar images and offered advice on how to avoid detection through the use of encryption software. He was also alleged to have encouraged users to commit sexual acts with children and to upload images and videos of themselves doing so. The Canadian charges were stayed. While Lane was on bail pending his extradition hearing, his father turned him into the police after discovering thousands of images of child pornography on Lane’s homemade computer. Lane was charged with breach of recognizance and various child pornography counts. He pleaded guilty, and succeeded in his application to have his distribution of pornography through Dreamboard considered in sentencing, even though a distribution charge was not before the court. This was a tactical maneuver that Lane took with the aim of engineering a double jeopardy defence to resist a possible extradition. Despite the objections of the Crown and the American authorities, the sentencing judge took the distribution into account as an aggravating factor in imposing a sentence of nine-and-a-half years’ imprisonment. Lane subsequently took the position that his surrender for extradition on the US charges should be refused because the facts of his distribution of child pornography through Dreamboard were taken into account in the Canadian sentence. He submitted that extradition to face similar charges in the US would expose him to double jeopardy. He also argued that the severity of the sentence he faced in the US would shock the Canadian conscience and that his extradition would unjustifiably infringe his right to remain in Canada under s. 6(1) of the Canadian Charter of Rights and Freedoms (Charter). The Minister rejected these arguments, and ordered Lane’s surrender.

HELD: Application dismissed. The Minister did not err in rejecting Lane’s double jeopardy argument. The US charges of engaging in a child exploitation enterprise, conspiracy to advertise the distribution of child pornography and conspiracy to distribute child pornography, concerned elements distinct from the making and possessing child pornography charges to which Lane pleaded guilty in Canada. The Minister took the proper offence-based approach to the double jeopardy analysis. It was reasonable for her to conclude that the elements and objectives of the Canadian offence of distributing child pornography were distinct from the American child exploitation enterprise offence. Similarly, the American conspiracy charges were distinct from the Canadian offence of distributing child pornography. Accordingly, double jeopardy was not engaged. The Minister, aware of the significant sentence Lane faced in the US, reasonably concluded that absent a potential death penalty or sentence that would involve some form of torture, the severity of a sentence would not generally shock the conscience of Canadians. In considering the impact on Lane’s right to remain in Canada, the Minister gave due consideration to the absence of Canadian charges against Lane and the unlikely possibility of a civil commitment order in the US. She weighed all the relevant factors, including the possibility of Lane receiving treatment for mental health issues while incarcerated in the US, in finding no breach of Lane’s s. 6(1) Charter rights.

United States of America v. Lane, [2017] O.J. No. 2621, Ontario Court of Appeal, J.I. Laskin, D. Watt and C.W. Hourigan JJ.A., May 18, 2017. TLD-June262017010