COURT OF APPEAL FOR ONTARIO

DATE: 20200529 DOCKET: C67225

BETWEEN

The Attorney General of Canada on Behalf of the United States of America Appellant

and

Tony Dada Akinbobola a.k.a. Lawrence D. Awoniyi a.k.a. Boss Tony a.k.a. Toyin Respondent

Counsel: Christopher Bundy, for the appellant Jeff Marshman, for the respondent

Heard: In writing

On appeal from the order of Justice N.J. Spies of the Superior Court of Justice, dated June 27, 2019; reported at 2019 ONSC 3434.

Doherty J.A.:

I

[1] The Attorney General of Canada (“AG”), on behalf of the United States of America, sought the extradition of the respondent, (“Tony Akinbobola”), and Harry Cole on fraud-related charges. Mr. Cole was ordered committed for extradition. Mr. Akinbobola was discharged without prejudice to the AG, bringing a further application supported by additional evidence. The AG appeals from the discharge order pursuant to s. 55 of the Extradition Act, 1999, c. 18.

[2] At the extradition hearing, Mr. Akinbobola acknowledged he was the person named in the U.S. charges and sought by the American authorities. He agreed the conduct alleged in the request for extradition constituted fraud under Canadian law. Mr. Akinbobola also accepted the evidence put forward in the record of the case (“ROC”) provided an evidentiary basis for a finding that several individuals had operated a large scale, somewhat sophisticated, fraudulent lottery scheme targeting elderly victims.

[3] Mr. Akinbobola argued the ROC did not provide any evidence upon which it could be reasonably inferred he was complicit in the fraudulent lottery scheme. He maintained the evidence summarized in the ROC referred to some minimal non-specific connection between him and some of the fraudsters. However, the ROC provided nothing, other than unsubstantiated bald conclusions concerning Mr. Akinbobola’s participation in the fraud. Those conclusions could not constitute evidence identifying him as a participant in the fraud. Mr. Akinbobola maintained, at its highest, those conclusions suggest that others believed he was involved in the fraud.

[4] The extradition judge accepted Mr. Akinbobola’s submission. She concluded, at para. 49:

I cannot rely on bald assertions and I must be put in a position to assess the sufficiency of the evidence. Even looking at all the evidence, in the ROC with respect to Mr. Akinbobola, the sum of a series of ‘nothings’ still equals nothing that I can rely on to make the order requested.

[5] On appeal, the Attorney General of Canada contends the extradition judge made two reversible errors. First, she failed to give effect to the presumptive reliability of the properly certified evidence filed in the proceeding: see Extradition Act, s. 32(1)(a), s. 3(3). Second, the extradition judge failed to consider whether the evidence in the ROC, considered as a whole, reasonably supported an inference that Mr. Akinbobola was involved in the fraud. Counsel for the AG argues the trial judge erroneously examined individual pieces of evidence in isolation from each other. Furthermore, she conducted that examination using a standard more appropriate to a criminal trial than an extradition proceeding.

[6] Counsel for Mr. Akinbobola submits the extradition judge did not question the reliability of the evidence in the ROC. She did, however, correctly draw a distinction between the parts of the ROC summarizing things done and observed by potential witnesses and those parts of the ROC containing bald, unsourced conclusory statements. Counsel contends the extradition judge properly held the latter had no evidentiary value and could not be relied on to justify the committal of Mr. Akinbobola for extradition.

II

The Relevant Statutory Provisions

[7] Documents contained in a properly certified ROC are admissible “as evidence” in an extradition proceeding: Extradition Act, s. 32(1)(a), s. 33(3). The extradition judge must commit for surrender if the evidence, which by definition includes the contents of the ROC, “would justify committal for trial in Canada on the offence set out …”: Extradition Act, s. 29(1)(a).

[8] An extradition judge cannot commit for extradition if the evidence as a whole does not permit the drawing of the inferences necessary to establish a prima facie case. The absence of a link in a circumstantial evidentiary chain will mean that a reasonable trier could not convict, and extradition must be refused: e.g. see U.S.A. v. Viscomi, 2015 ONCA 484; The U.S.A. v. Huynh, 2005 ONCA 305.

[9] An extradition judge also has the power to engage in a limited weighing of the evidence, as explained in R. v. M. (M.), 2015 SCC 62, at para. 40:

Thus, where the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case is considered insufficient for committal.

[10] I do not think the extradition judge engaged in the limited weighing envisioned in R. v. M. (M.). Instead, the extradition judge held the bald assertions in the ROC attributed to an individual involved in the fraudulent scheme had no evidentiary value, absent identification in the ROC of the basis for the assertion. Without any explanation, the assertions could not connect Mr. Akinbobola to the fraud. On the extradition judge’s analysis, the ROC did not contain the all important explanation underlying the assertions made by the accomplice. Without that explanation, the assertions had no evidentiary value. The extradition judge saw this as a case in which there was no evidence in respect of Mr. Akinbobola’s participation in the offence, rather than one in which there was evidence, but it was so defective or unreliable as to be unable to withstand even the limited weighing described in R. v. M. (M.).

III

The Contents of the ROC

[11] The anticipated evidence summarized in the ROC outlined the investigation conducted by the American authorities, the nature of the lottery scheme fraud, and identified various individuals said to be connected to the fraud. The ROC identified Stephen Omowaiye as a participant in the fraud. According to the ROC, he had pled guilty and had been sentenced in Texas. It was anticipated that he would testify in the American proceedings. Most of the information contained in the ROC referable to Mr. Akinbobola is attributed to Mr. Omowaiye. I will focus on that part of the ROC in my reasons.

[12] The ROC described Mr. Omowaiye’s role in the fraud and his connection to various other individuals involved in the fraud. Mr Omowaiye was brought into the fraud by Mr. Cole and another man. He took orders primarily from Mr. Cole. Over time, Mr. Omowaiye became intimately involved in virtually every aspect of the ongoing fraud.

[13] Mr. Omowaiye met Mr. Akinbobola on one occasion. Mr. Cole was present. There was no evidence about any discussions at that meeting.

[14] The ROC indicates that Mr. Omowaiye will testify to the following:

• Mr. Cole gave him instructions on multiple occasions to wire proceeds of the fraud to a bank account controlled by Mr. Akinbobola in Canada (ROC, paras. 15, 45);
• he was one of the “main record keepers” for Mr. Cole and was responsible for keeping track of amounts owed to various people who were assisting in the fraud. In that capacity, he came to know Mr. Akinbobola was paid money for his participation in the fraud (ROC, para. 17);
• he knew Mr. Akinbobola worked as a “closer” for Mr. Cole, prepared “scam mailers” and, on behalf of Mr. Cole, received funds generated by the fraud, sent to Canada (ROC, para. 19);
• on one occasion, he mailed four money orders to Canada. On the same day, he mailed a package to “Tony Akinbobola” in Ontario, Canada. All four money orders were deposited into the account that Mr. Omowaiye had been told was controlled by Mr. Akinbobola (ROC, paras. 45, 50);
• Mr. Omowaiye used a certain email address to communicate with Mr. Akinbobola. He used that email address to alert Mr. Akinbobola to deposits of funds into the account Mr. Cole had indicated to Mr. Omowaiye was controlled by Mr. Akinbobola. Mr. Cole also communicated with that email address on many occasions. Postal records tied that email address to packages mailed by victims of the fraud from various locations in the United States. The packages contained money sent by the victims in response to the false representations (ROC, para. 47, 48, 49); and
• Mr. Omowaiye regularly communicated with Mr. Akinbobola, utilizing a certain mobile phone number. The person he communicated with identified himself in text messages as the operator of a certain business. This was the business that Mr. Cole had told Mr. Omowaiye was controlled by Mr. Akinbobola. In another text message, the sender of the message identified himself by name as Mr. Akinbobola with an address in Mississauga. Mr. Omowaiye sent other text messages to the same mobile phone number, referring to various steps taken in furtherance of the fraud. For example, one text message alerted Mr. Akinbobola to the new alias Mr. Omowaiye was using in his communications with victims of the fraud (ROC, para. 52).

[15] The extradition judge went through the ROC. She ultimately held that there was no evidence connecting Mr. Akinbobola to the bank account in which Mr. Omowaiye deposited some of the proceeds of the fraud. She said, at para. 46(c):

There is no information as to how Mr. Omowaiye knows that the TTR account was in the name of Mr. Akinbobola or controlled by him.

[16] With respect, this is a misreading of the relevant part of the ROC. It reads:

Omowaiye will testify that he also deposited victim funds into bank accounts and wired victim funds, following instructions by Cole and Ajayi. Sometimes those bank accounts were in Canada and controlled by Cole or Ajayi. Sometimes independent unlicensed money transmitters would receive the money from Omowaiye in U.S. bank accounts and then use foreign bank accounts to send money to Cole and Ajayi. Omowaiye was given instructions by Cole to wire victim proceeds to bank accounts controlled by Akinbobola specifically TTR African Foods Plus – on multiple occasions. [Emphasis added.]

[17] I read para. 15 as identifying Mr. Cole, the prime mover in the fraud, as having told Mr. Omowaiye that the account was controlled by Mr. Akinbobola. While this evidence may be hearsay in the trial context, its hearsay quality does not affect its use in the context of an extradition proceeding: see U.S.A. v. Yang (2001), 56 O.R. (3d) 52, at para. 11.

[18] Apart from identifying Mr. Cole as the source of Mr. Omowaiye’s information connecting Mr. Akinbobola to a specific bank account, the ROC provided additional insight into how Mr. Omowaiye came to know about Mr. Akinbobola’s participation in the fraud. The ROC describes Mr. Omowaiye’s involvement in the scheme at length. Based on that involvement, he was well positioned to know who the other participants in the scheme were, and the various functions they performed. Mr. Omowaiye was closely connected to Mr. Cole, who was apparently in charge of the scheme. Mr. Omowaiye also identified himself as “one of the main record keepers”. Performing that role gave Mr. Omowaiye the opportunity to know how the money flowed from the fraud and to whom it flowed, both strong indicators of the participants in the fraud.

[19] Mr. Omowaiye’s claim that he was communicating with Mr. Akinbobola in furtherance of the fraudulent scheme is supported by the evidence that the other participant in the text messages identified himself as Mr. Akinbobola on at least one occasion. He also indicated that he was the person who controlled a specific company. This was the same company Mr. Cole had indicated to Mr. Omowaiye was controlled by Mr. Akinbobola.

[20] Counsel for Mr. Akinbobola submits Mr. Omowaiye’s evidence about his client’s involvement in the fraud is similar to an opinion offered by an investigator as to someone’s involvement in a fraud. With respect, the detailed description of Mr. Omowaiye’s ongoing involvement in the fraud, as described in the ROC, puts him in a qualitatively different position than the police officer referred to in counsel’s argument. The police officer offers an opinion about the involvement of others based on a review of available documentation. Mr. Omowaiye offers his evidence, having been deeply involved in the scheme as it operated: see U.S.A. v. Yang, at para. 63.

IV

Conclusion

[21] The extradition judge wrongly removed much of Mr. Omowaiye’s anticipated evidence from the evidentiary mix when considering whether there was a sufficient basis upon which to commit Mr. Akinbobola for extradition. The references in Mr. Omowaiye’s anticipated evidence to Mr. Akinbobola’s participation in the fraud were more than bald assertions. Read as a whole, the ROC provided a basis upon which a reasonable trier could conclude that Mr. Akinbobola participated in the fraud described in the ROC.

[22] The extradition judge’s analysis, and counsel for Mr. Akinbobola’s submissions, may lay bare shortcomings in the prosecution case as it is laid out in the ROC. To the extent those shortcomings exist, they are properly addressed in another forum, in another jurisdiction.

[23] I would allow the appeal, set aside the order of discharge, and make an order committing Mr. Akinbobola for extradition on the charge.

Released: May 29, 2020 Doherty J.A. I Agree Janet Simmons J.A. I Agree G. Pardu J.A.