U.S. v. Viscomi: Extradition in the Internet Age

Can a Canadian citizen be extradited to another country for committing a crime there? The answer is yes. Unlike many other countries, who only permit extradition of non-citizens, Canada allows extradition of Canadians to foreign states, such as the U.S. – but only in cases where Canada maintains an extradition treaty with that country.

Canada and the United States have had an extradition treaty since the 1970s. A Canadian citizen can be extradited to a foreign country if he or she commits a criminal offence in that country that also counts as a criminal offence in Canada. Also, the criminal offence must be subject to a minimum two-year prison sentence.

This all sounds very straightforward, but what happens in cases where the alleged offender committed criminal acts over the internet? What if the Canadian citizen sat at his computer in Canada and used cyberspace to do something illegal in the United States?

This is just what happened in U.S. v. Viscomi

Case Background

The facts surrounding U.S. v. Viscomi are disturbing, and the Court of Appeal for Ontario even noted that no one involved in the case disputes that “internet child luring and exploitation occurred.”

In 2012, police in the U.S. discovered that Marco Viscomi, a 29-year-old medical student living in Ontario, had used Skype, an internet chat service, to force two teenage sisters to perform explicit and violent sexual acts. According to the appeals court decision, the Skype conversation allowed Viscomi to view the girls but kept his side of the camera private so that the girls could not see him. Viscomi allegedly forced the girls to perform the acts by threatening to infect their computer with viruses and claiming he would notify their parents of what had occurred.

Police in the U.S. traced the Skype sessions back to Viscomi through his IP (internet protocol) address and ISP (internet service provider). Through the cooperation of U.S. and Canadian police, the authorities arrested Viscomi and charged him with luring a child, extortion, and uttering threats – charges that were dropped once the U.S. pressed for extradition.

Although the court approved extradition at Viscomi’s extradition hearing, the Court of Appeal for Ontario reversed the lower court’s ruling on the ground that knowing an internet user’s IP address does not prove that user is the “someone” on the other end of a computer. The court stated: “By way of analogy, take, for example, a situation where a car is recklessly driven through a red light, striking another vehicle and very seriously injuring a passenger in that vehicle. The first vehicle and driver disappear, but an observer has taken down the licence plate number and the police are able to trace the owner of the vehicle with that information. The observer did not see the driver, and there is no other evidence in relation to the identity of the driver of the vehicle at the time. Could the registered owner of the vehicle be convicted of criminal negligence causing bodily harm on the basis of the foregoing evidence alone? I would think that to pose the question is to answer it in the negative.”

To be sure, the Viscomi case has raised numerous questions regarding the internet and the commission of crimes – questions courts in both Canada and the U.S. are still grappling with. Although the appeals court quashed Viscomi’s extradition, he was immediately re-arrested following the court’s decision and remains behind bars. According to the Toronto Sun, U.S. authorities are expected to make another extradition request.

Ottawa, Ontario Criminal Defence

Criminal defence lawyers Bruce Engel and Elena Davies have represented individuals and businesses charged with hundreds of different offences throughout Canada for more than two decades. From the start of a criminal investigation to the close of a trial, we will take a balanced and forceful approach to your defence. We have the experience and know-how to effectively navigate the constantly changing justice system in Canada.

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