Court of Appeal for Ontario

Date: 2022-01-20 Docket: C68781

Judges: MacPherson, Roberts and Miller JJ.A.

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

Between:

The Minister of Justice of Canada and Attorney General of Canada (on behalf of the United States of America) Respondent

and

Tony Akinbobola Applicant

Counsel: Jeff Marshman, for the applicant Rebecca Sewell and Roy Lee, for the respondent

Heard: September 29, 2021 by video conference

On application for judicial review of the surrender order of the Minister of Justice, dated October 26, 2020.

B.W. Miller J.A.:

[1] The United States of America seeks extradition of the applicant for prosecution. The applicant is alleged to have conspired with others to defraud elderly victims of hundreds of thousands of dollars through a sweepstakes scheme. In earlier proceedings, this Court concluded there was sufficient evidence to justify the applicant’s committal for extradition. The Minister of Justice then ordered the applicant surrendered to the United States.

[2] The applicant brings this application for judicial review of the surrender decision on the basis that the Minister of Justice erred in his assessment of whether extradition would violate the applicant’s right to remain in Canada under s. 6 of the Charter of Rights and Freedoms, as well as his right not to be deprived of liberty except in accordance with principles of fundamental justice, as provided by s. 7 of the Charter. The applicant also argues that his surrender would be otherwise unjust or oppressive, and the Minister’s decision to surrender him was therefore unreasonable.

[3] For the reasons given below, I would dismiss the application.

A. History of Proceedings

[4] The sweepstakes scheme is alleged to have caused losses of over $900,000 to victims, who were primarily elderly residents in the state of Texas. Victims would be called and told that they had won a sweepstakes. They would be instructed to call the applicant, who would convince the victims to deposit a fraudulent cheque of $8,000, and then send cash or money orders to him to facilitate deposit of their much larger “prize.” The applicant was not the originator of the scheme, but is alleged to have been one of several people hired to prepare the sweepstakes letters, take calls from the victims, and receive and forward the funds. The applicant is alleged to have operated entirely from Ontario, from March to October 2015.

[5] The applicant was arrested in 2018. He was initially discharged following a committal hearing in 2019, but the discharge was successfully appealed to this Court, which committed him for extradition. Following committal, and after receiving submissions from the applicant, the Minister of Justice ordered the applicant to be surrendered to the United States.

[6] The Minister’s reasons considered whether the decision to prefer extradition over domestic prosecution infringed the applicant’s mobility rights under s. 6(1) of the Charter. He also considered whether the applicant’s surrender would infringe the applicant’s s. 7 rights, or otherwise be unjust or oppressive. Taking into account all of the circumstances of the applicant’s case and Canada’s international commitments, the Minister concluded that the applicant ought to be surrendered.

B. Issues on judicial review

[7] The applicant argues that the Minister committed the following errors:

1. Concluding that surrendering the applicant would not constitute an unjustifiable infringement of his right to remain in Canada under s. 6 of the Charter;
2. Not concluding that surrendering the applicant to face a likely sentence of 24-30 years would be contrary to principles of fundamental justice and therefore violate his rights under s. 7 of the Charter; and
3. Concluding that surrendering the applicant would not be otherwise unjust or oppressive in the circumstances.

C. The Standard of Review

[8] Section 57 of the Extradition Act, S.C. 1999, c. 18, provides a statutory right of judicial review of the Minister’s surrender order. The Minister’s decision, including the determination that surrender would not be a violation of the Charter and would not be otherwise unjust or oppressive under s. 44(1)(a) of the Extradition Act, is afforded substantial deference and assessed using the standard of reasonableness due to the Minister’s expertise in relation to Canada’s international obligations: Romania v. Boros, 2020 ONCA 216, 150 O.R. (3d) 158. The decision to surrender is an exercise of discretion, and the reviewing court is not entitled to re-weigh the facts and substitute its own view. If the Minister considered the relevant facts and reached a reasonable conclusion based on those facts, the decision must be upheld: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 2, 26, 34, 38, and 41.

D. Analysis

(1) S. 6(1) of the Charter – the right to remain in Canada

[9] The right of Canadian citizens to remain in Canada is protected by s. 6(1) of the Charter, which provides: “[e]very citizen of Canada has the right to enter, remain in and leave Canada.” In United States v. Cotroni, [1989] 1 S.C.R. 1469, the Supreme Court determined that extradition is a prima facie limitation on the right to remain in Canada. However, the Court stated at p. 1481 of Cotroni that extradition “lies at the outer edges of the core values” of s. 6(1), and at p. 1483 that “extradition will be generally warranted under s. 1 of the Charter as a reasonable limitation of the right to remain in Canada”, given the pressing and substantial objectives of extradition: “(1) protecting the public against crime through its investigation; (2) bringing fugitives to justice for the proper determination of their criminal liability; (3) ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law”: Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 10.

[10] The Minister’s discretion to extradite is not unfettered, and the Minister must consider whether it would be appropriate to prosecute domestically instead of ordering surrender. The analysis of whether the limit of s. 6(1) rights occasioned by a particular extradition is justified under s. 1 uses the same criteria – known as the Cotroni factors – as the non-Charter analysis for determining whether a domestic prosecution would be preferable to extradition: Cotroni, at pp. 1497-98.

[11] The applicant argued that only two of the Cotroni factors favoured surrender – that the victims reside primarily in the United States, and American authorities played a major role in the investigation into the alleged scheme – and that the remainder favoured domestic prosecution. The Minister disagreed, focusing his decision on the Cotroni factors he considered most persuasive:

• The impact of the offence was experienced in the U.S.;
• American law enforcement played the major role in the development of the case;
• The U.S. laid charges;
• The U.S. has the most comprehensive case and is the most effective jurisdiction in which to proceed with a prosecution;
• The U.S. is ready to proceed to trial;
• Seven of the nine witnesses reside in the U.S.;
• Seven other accused are involved, two of whom are fugitives from justice. The others, excluding the applicant, have been or are being tried in the U.S.

[12] The applicant argues that the Minister erred in law in not considering in this analysis the potential disparity in sentencing between the U.S. and Canada for similar offences. The applicant argues that he faces a potential sentence in the U.S. ranging from 24-30 years, while the sentencing range in Canada for equivalent offences would be 2-3 years.

[13] I do not agree that the Minister erred in this respect. The applicant is correct that the severity of sentence is included in the non-exhaustive list of relevant factors set out in Cotroni. However, as the Supreme Court held in Sriskandarajah at para. 22, Cotroni sets out “a non-formalistic test that grants flexibility to the Minister’s decision.” The Minister is “not required to provide a detailed analysis for every factor. An explanation based on what the Minister considers the most persuasive factors will be sufficient”: Lake, at para 46.

[14] The argument that the Minister overlooked the sentencing differential is readily countered by considering the structure of the Minister’s reasons. Before addressing the s. 6(1) argument, the Minister first addressed the applicant’s arguments that his surrender would violate his rights under s. 7 of the Charter. Among those arguments was the argument that surrender in the face of the sentencing disparity would be contrary to the principles of fundamental justice. The Minister reasoned that it would not be. (I address the substance of that argument below, in reviewing the Minister’s s. 7 reasons.) As the Crown argues, having considered the sentencing disparity argument at length in the s. 7 analysis, and having rejected the argument, the Minister was not required to repeat the analysis in the s. 6(1) reasons, or even expressly refer to it. It was sufficient for the Minister to have stated that he considered all of the Cotroni factors and to note the applicant’s argument that only two Cotroni factors favoured surrender, and that all of the others – which would include the sentencing disparity – favoured domestic prosecution. It is clear, reading the reasons as a whole, that the Minister considered and rejected the argument that a balancing of the Cotroni factors – including sentencing disparity – favoured domestic prosecution. The Minister did not commit the error of law advanced by the applicant.

(2) S. 7 – deprivation of liberty contrary to the principles of fundamental justice

[15] The applicant’s second argument is that the Minister erred in concluding that his surrender in the face of the potential sentencing disparity would be a deprivation of liberty contrary to the principles of fundamental justice and would thus violate his rights under s. 7 of the Charter.

[16] The applicant is a 51-year-old convention refugee from Nigeria, who has lived a productive and pro-social life in Canada for 20 years. He is married, with an 11-year-old child. The applicant argues that his alleged role in the sweepstakes scam was minor, time-limited, and non-violent. It is therefore unconscionable, he argues, that he could face a sentence of 24-30 years, particularly given that the sentence range for a comparable crime committed in Canada would be 2-3 years.

[17] The Minister did not characterize the matter in the same way. First, with respect to the sentencing disparity, the Minister concluded, based on advice from the Public Prosecution Service of Canada and the office of the Attorney General of Ontario, that the applicant would likely receive a global sentence in Canada between 6 and 8 years. The Minister also noted that although U.S. sentencing guidelines indicate a sentence range of approximately 24-30 years, that range presumes the imposition of consecutive rather than concurrent sentences. However, the Minister was advised by the U.S. Department of Justice that the decision to impose consecutive sentences is discretionary, and should multiple sentences be imposed they would likely be concurrent. Additionally, the Minister noted that the other individuals alleged to have been involved in the same criminal enterprise as the applicant were sentenced, after entering guilty pleas, to between 8 and 14 years imprisonment.

[18] Nevertheless, the Minister acknowledged that the applicant could receive a sentence far in excess of what he would receive in Canada. The Minister noted, however, that in s. 7 analysis sentencing disparity is decisive only in exceptional circumstances: Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170. A sentence is not unjust or oppressive simply because the applicant would have received a lesser sentence had he been prosecuted domestically: USA v. Ranga, 2012 BCCA 82, [2012] B.C.W.L.D. 5379, at para. 9. As this Court held in France v. Diab, 2014 ONCA 374, 120 O.R. (3d) 174, at para. 202, the test for refusing surrender on s. 7 grounds is strict, “and only precludes surrender in cases of a ‘very exceptional nature’ where surrender to the requesting state would ‘shock the conscience’ of Canadians and be ‘simply unacceptable’” (citations omitted).

[19] The Minister did not accept the applicant’s characterization of his role in the alleged offence as minor, despite the fact that he is not alleged to have been the originating or organizing mind behind the scheme. The Minister considered the basic principles of the legal system supporting surrender: extradition is based on principles of comity and fairness to cooperating states; Canada ought not to be a safe haven for fugitives from justice; and justice is best served in the jurisdiction where the crime was allegedly committed and where the harms of that crime were experienced.

[20] The applicant asserts that this was not a reasonable conclusion, and that allowing the applicant to face a potential sentence of 24-30 years would shock the conscience of Canadians. However, the standard for setting aside the decision of the Minister as a violation of s. 7 is demanding, and it is not satisfied by a sentencing disparity of this nature. As this Court held in United States v. Viscomi, 2019 ONCA 490, 146 O.R. (3d) 145, at para. 46, “the determination of whether a potential sentence is so severe as to be fundamentally unjust, is not established by a simple quantitative comparison of the relative lengths of foreign and domestic sentence ranges.” And as in Viscomi, it is significant that the applicant has not identified any case law in which the length of the foreign sentence was found to constitute such an extreme punishment that it infringed s. 7. I would not allow the application on this ground.

(3) Extradition Act, s. 44(1)(a) - Unjust or oppressive

[21] The applicant argues that rejection of the Charter arguments is not dispositive of the application because s. 44(1)(a) of the Extradition Act requires the Minister to refuse surrender where it would be “unjust or oppressive having regard to all the relevant circumstances”, and that circumstances that do not amount to a violation of s. 6 or s. 7 of the Charter may nevertheless be sufficiently unjust and oppressive to require the Minister to refuse surrender under s. 44(1)(a).

[22] The Minister retains discretion to refuse surrender on the basis that it would be unjust and oppressive even where no Charter breach is alleged or established: Fischbacher, at para. 39. It is therefore theoretically possible for circumstances short of a Charter violation to ground a s. 44(1)(a) refusal, although the applicant was not able to supply any examples of a court on judicial review having found so. On this application, the applicant has simply repeated the arguments made under s. 6(1) and s. 7 of the Charter – that the Minister’s decision is unreasonable because it would be unjust and oppressive to order surrender where an applicant faces a potential sentencing disparity of the magnitude faced by this applicant. This is essentially an invitation to this court to reweigh the factors considered by the Minister and come to a different conclusion. There is no basis for this court to do so. This ground of review is not established.

DISPOSITION

[23] I would dismiss the application for judicial review.

Released: January 20, 2022 “JCM” “B.W. Miller J.A.” “I agree. J.C. MacPherson J.A.” “I agree. L.B. Roberts J.A.”