Court of Appeal for Ontario

Date: 2018-08-31 Docket: C64700

Judges: Watt, Huscroft and Fairburn JJ.A.

In the Matter of an Appeal and Application for Judicial Review

In the Matter of: an appeal of a committal order pursuant to s. 49 of the Extradition Act, S.C. 1999, c. 18

And In the Matter of: an application for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18

Parties

Respondent: Attorney General of Canada On Behalf Of the United States of America

Appellant: Osayi Edison Omoruyi

Counsel

For the Appellant: Raymond Boggs

For the Respondent: Adrienne Rice

Hearing and Release

Heard and Released Orally: August 24, 2018

On Appeal From: the committal order of Justice Edward M. Morgan of the Superior Court of Justice, dated March 17, 2017, and on application for judicial review of the surrender order of the Minister of Justice, dated November 13, 2017.

Reasons for Decision

Overview

[1] The appellant appeals the order of a judge of the Superior Court of Justice committing him for surrender to the United States of America for prosecution on charges of conspiracy to commit wire fraud and mail fraud, and possession and transmission of counterfeit money orders. The domestic equivalent offence is possession of property obtained by crime. About eight months later, the Minister of Justice ordered the appellant's surrender on the offences for which his extradition is sought.

[2] The materials before the hearing judge consisted of the Record of the Case; a Supplemental Record of the Case; and an Agreed Statement of Fact. The evidence summarized in the materials filed on the committal hearing was largely circumstantial. It described a web of connections between a person alleged to be the appellant, various accomplices and the origin and destination of the funds generated by the scheme, an amount approaching $500,000 U.S. dollars.

[3] As we understand the submissions advanced on behalf of the appellant, he says that the evidence adduced at the committal hearing fails to meet the standard of proof required in connection with two essential elements of the domestic equivalent offence of possession of property obtained by crime:

i. that the appellant was a participant in the scheme (the identification issue); and

ii. that the appellant knew of the criminal origins of the funds received (the knowledge issue).

[4] We disagree.

The Identification Issue

[5] On the identification issue, there was evidence that the recipient of the wired transfers in Nigeria was a person with the same name and same date of birth as the person who appeared before the hearing judge in the courtroom. Under s. 37(a) of the Extradition Act, SC 1999, c 18, the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner, and we would add, to the name of the person who retrieved proceeds of the fraud, is sufficient to satisfy the evidentiary threshold for identity.

[6] In this case, the evidence goes beyond mere similarity of names. The names are accompanied by dates of birth. Both the names and the dates of birth are not merely similar: they are identical. The hearing judge was also entitled, under s. 37(b) of the Extradition Act, to consider, if he wished, the similarities between the physical characteristics of the person who appeared before him and the person depicted in the photographs included in the record of the case on the identification issue.

[7] The hearing judge was entitled, indeed required, to consider the circumstantial evidence of identification as a whole to determine whether, considered in that way, it met the standard of proof required. He did so. He made no error in the standard he applied or in the conclusion he reached.

The Knowledge Issue

[8] Turning to the issue of knowledge, we are equally satisfied that the hearing judge did not err in concluding that there was evidence upon which a reasonable jury, properly instructed, could find this element of the domestic equivalent offence proven beyond a reasonable doubt.

[9] Considered in its totality, the evidence summarized in the material before the hearing judge would permit a reasonable jury, properly instructed, to conclude among other things, that:

i. the funds Patricia Beavers received were obtained by fraud;

ii. the subsequent transfers from Beavers to the appellant were proceeds of the fraud, some of which were retained by Beavers;

iii. the appellant received direct transfers from one of the victims on the basis of false representations; and

iv. the appellant and another recipient of funds, whom Beavers expressly identified as a participant in the fraud, retrieved their transfers from the same financial institution in Nigeria.

These inferences, available from the evidence summarized in the materials before the hearing judge, met the threshold requirement on what we have termed the "knowledge" issue.

Disposition

[10] The appeal from the decision of the hearing judge is dismissed.

[11] The appellant has abandoned his application to review the decision of the Minister of Justice. That application is dismissed as abandoned.

"David Watt J.A."

"Grant Huscroft J.A."

"Fairburn J.A."