Court of Appeal for Ontario

Date: 2025-07-21
Docket: M56122 (COA-25-CR-0654)
Judge: Peter Lauwers (Motion Judge)

In the Matter of the Extradition Act, S.C. 1999, c. 18

Between:

The Attorney General of Canada on behalf of the United States of America
Respondent/Responding Party

and

Adeyanju Olaniyan
Appellant/Moving Party

Appearances:
Rupinjit Singh Bal, for the appellant/moving party
Kandia Aird, for the respondent/responding party

Heard: July 15, 2025

Endorsement

Background and Statutory Framework

[1] Adeyanju Olaniyan was committed into custody with two others to await surrender and extradition to the United States of America under s. 29 of the Extradition Act, S.C. 1999, c. 18, by Mirza J., on April 25, 2025, with reasons reported at 2025 ONSC 2374. The applicable test is set out in s. 29 of the Extradition Act, which provides:

29. (1) A judge shall order the committal of the person into custody to await surrender if
    (a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner…

[2] Mr. Olaniyan appealed the committal order and now applies for bail pending appeal. Section 20(a) of the Extradition Act provides that s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, applies to such an appeal “with any modifications that the circumstances require”. The grounds are that (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. The basic onus is on the applicant: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

The Committal Decision and Allegations

[3] The basis for the committal was set out at great length in the decision under appeal. The nub of the case against Mr. Olaniyan and others is set out in paras. 2‑4 of the decision under appeal:

The Minister of Justice has issued an Authority to Proceed (ATP) that applies to each accused Respondent pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18. This authorizes the Attorney General of Canada (AGC) to seek an order for Balogun, O’Connor and Olaniyan’s committal for extradition for prosecution on the basis of the Canadian offence of fraud contrary to s. 380(1) of the Criminal Code, R.S.C., 1985, c. C-46.

The Attorney General has submitted a Record of the Case (ROC) and a Supplementary Record of the Case (SROC) which summarizes the evidence and, as required by section 33(3)(b) of the Extradition Act, certifies that the evidence is available and sufficient under the laws of the US to justify prosecution.

The ROC and SROC allege that since 2021 a Federal Bureau of Investigation (FBI) and the U.S. Food and Drug Administration (FDA) investigation identified that Balogun, O’Connor, and Olaniyan were involved in a conspiracy to fraudulently acquire medical supplies from distributors and their client pharmacies. It is alleged that they worked together to arrange to intercept and obtain the shipped medical supplies using couriers. Their unlawfully acquired supplies were resold for profit and these proceeds were sent digitally to bank accounts controlled by some of the Respondents. It is alleged that dozens of US based pharmacies and medical supply distributors including Company 1, Company 2, and Company 3, suffered losses.

The Extradition Context and Bail Test

[4] The extradition context introduces tension between the low threshold of “not frivolous” in the first ground under s. 679, and the lower tolerance for flight risk in the second ground that comes with Canada’s international obligations to its extradition partners to deliver the individual up for extradition once the process has run its course.

[5] In U.S.A. v. Kyeremeh, 2020 ONCA 438, 151 O.R. (3d) 522, Paciocco J.A. set out some modifications in the application of s. 679 required in the extradition context, at para. 17. In the context of extradition:

“The question under s. 679(3)(b) is whether the applicant has established, on the balance of probabilities, that the likelihood that he will surrender himself into custody overcomes the concern that if he is released, Canada may be unable to discharge its international commitments to its extradition partner.”

[6] In this assessment, the court must bear in mind “all considerations relevant to flight risk”, which includes “the lower flight-risk tolerance that applies where an applicant's failure to surrender would frustrate the public interest in Canada's discharge of its international obligations to its extradition partners.” If the applicant has not established that he will surrender himself, then the court need not go on to “consider the effect of his risk of flight on the public interest, under s. 679(3)(c).”

Grounds of Appeal and Evidence

[7] The grounds on which Mr. Olaniyan based his submissions to me track the summary provided by the extradition judge, at para. 81.

Olaniyan argues that the evidence tendered in support of committal is insufficient, unreliable and does not support the inferences relied on by the Requesting State. While the ROC describes a large-scale fraudulent scheme which has received significant investigative attention, it does not contain evidence upon which a reasonable jury, properly instructed, could convict Mr. Olaniyan for the Canadian offence listed in the Authority to Proceed.

First, the banking evidence summarized in the ROC provides no transactions that are connected to the incidents of fraud alleged.

Second, the telecommunications evidence summarized in the ROC relies upon speculative inferences that are unsupported by the evidence.

Third, the communications alleged to have occurred between Mr. Olaniyan and the confidential informant in the Requesting State are unconnected to incidents of fraud.

Fourth, the voice identification evidence that the Requesting State has provided is inadequate and unreliable.

[8] On the first ground, the applicant argues that the grounds he advances on appeal are “not frivolous”. His main ground is that the voice recognition evidence linking Mr. Olaniyan to the fraud was “speculative”. He draws on several paragraphs of the extradition judge’s reasons in support of this argument, including paras. 97 and 107:

Balogun and O’Connor rest a significant part of their argument against committal for extradition on the basis that the voice recognition evidence by the FBI is manifestly unreliable. Olaniyan adopts their arguments.

There is merit to the Respondents’ position that the FBI officer’s opinion evidence alone that the voices match, subject to trial litigation, could be inadmissible, because the FBI special agents are in no better position than the trier of fact to assess the situation under scrutiny. See: Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 836; R. v. Leaney, [1989] 2 S.C.R. 393. This argument may be relatively stronger in relation to the voice opinion evidence concerning Olaniyan given the limited comparator recordings.

[9] However, counsel did not cite several other paragraphs of the extradition judge’s reasons that step past and contextualize the extradition judge’s earlier comments. I note, in particular, paras. 119-120:

Further, the FBI reasonably relies on additional circumstantial evidence connectors that support that the Respondents are involved in the fraud scheme. This compilation of evidence serves to distinguish this case from other limited cases where there was no foundation. The total evidence demonstrates that this voice identification evidence is not manifestly unreliable and is capable of supporting extradition.

O’Connor, Balogun and Olaniyan self-identify on Canadian Bank recordings and provide specific personal information that enhances their reliability. I find that the recorded calls contents before me are of sufficient length, content, and clear quality for a listener to observe their voice, manner of speaking, phrasing, intonation, tone, and cadence and then compare them to other calls collected during the investigation.

[10] The extradition judge was alive to the reliability concerns, observing that the ultimate issue was for the trier of fact. At para. 136, he noted:

The voice evidence is not the only identification evidence. There is a considerable body of circumstantial evidence that proves identification. For instance, there is the call data comparison that correlates the true call numbers (and IMEI) with the Respondents. Their voices are heard on these calls as compared to the baseline bank recordings. Also, Individual 1 provided identification evidence relying on past experience, a recording of a call, in combination with a photo identification of Balogun. Individual 1 also recorded “Dream,” and did receive a package after arranging for delivery from the person they knew to be “Dream” and “John.” Individual 1 will say that they were doing business with Dream and John for months, and that John is Olaniyan.

[11] This evidence led the extradition judge to observe, at para. 137, that this is “not a case where concerns about the reliability of the evidence are enough to prompt the outright rejection of the evidence”.

[12] The extradition judge considered the evidence against Mr. Olaniyan specifically at paras. 192-204. He determined, at para. 192, that the “total evidence is sufficient and reliable to support reasonable inferences relied on by the Requesting State upon which a reasonable jury, properly instructed, could convict Mr. Olaniyan for the Canadian offence of fraud.” This conclusion is amply demonstrated by what follows in the succeeding paragraphs. The extradition judge fully understood and addressed Mr. Olaniyan’s arguments.

[13] More is required for Mr. Olaniyan to establish that his grounds for appeal meet the “not frivolous” test than a general attack of the sort he advances, which amounts to not much more than a general denial that any accused might make.

Flight Risk and Bail Plan

[14] On the second prong of the statutory test, Mr. Olaniyan asserts that he is not a flight risk. The Crown focuses on Mr. Olaniyan’s behaviour on the very day his previous bail conditions (including house arrest) were relaxed, when his bail was amended to include curfew conditions. The Crown argues that his conduct on that occasion shows that he is a flight risk.

[15] The Crown describes the events on August 1, 2024 in terms that the applicant does not dispute:

On August 1, 2024, at approximately 11:18 pm, police observed OLANIYAN driving a vehicle as he was returning to his residence. OLANIYAN was bound by a curfew of 9 pm to 6 am with limited exceptions. He was not out of his residence for medical emergencies nor was he in the presence of one of his sureties. He was the sole occupant of the vehicle.

Police attempted to conduct a traffic stop of the vehicle, and they activated emergency equipment and sirens. OLANIYAN failed to stop for the police and continued to drive away and attempted to enter the underground parking lot of an apartment building. OLANIYAN’s vehicle was blocked in by cruisers and he was taken into custody at 11:19 pm. A search of OLANIYAN’s vehicle incident to arrest revealed that he was in possession of two cell phones in further breach of his bail conditions. OLANIYAN plead guilty to the charges related to this incident on January 23, 2025.

[16] Mr. Olaniyan’s counsel submitted that he “has realized that he made a mistake and will not fall into the same behaviour.” He adds that the release plan is strong. There are three sureties pledging $140,000 in total, comprised of the following:

1. Kofoworolda Omowunmi Ayinde – His sister-in-law. Mr. Olaniyan will reside with her and she pledges $45,000.
2. Abimbola Rasheedat Nike Adekoya – His brother-in-law who pledges $50,000.
3. Matt Esekie – A family friend who pledges $45,000.

[17] This contrasts with the amounts pledged by his previous and other sureties, who are now subject to the prospect of estreatment, in the total amount of $256,500.

[18] The other conditions of bail, which Mr. Olaniyan swore to in an affidavit filed with the court just prior to the hearing, are not nearly as rigorous as the first bail order.

[19] Taken together, Mr. Olaniyan has not established he is not a flight risk, taking into account the serious charges he faces, his prior conduct, and inadequate bail conditions.

Public Interest and Disposition

[20] Counsel for the applicant argues that the third prong of the test – the public interest – weighs in favour of the applicant, in part because he still enjoys the presumption of innocence. As noted by Paciocco J.A. in Kyeremeh, I need not consider this factor in the extradition context, having concluded that Mr. Olaniyan is a flight risk.

[21] I dismiss Mr. Olaniyan’s application for bail pending appeal for these reasons.

[22] Mr. Olaniyan’s counsel advises that the transcripts should be ready in a few weeks. I order that the appeal be expedited.

“P. Lauwers J.A.”