Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220530 DOCKET: C69837

Roberts, Zarnett and Coroza 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 Respondent

and

Chukwudi Kingsley Kalu Applicant

Counsel: Sola Kadiri, for the applicant Roy Lee, for the respondent

Heard: May 19 and 20, 2022

On application for judicial review of the surrender order of the Minister of Justice, dated August 19, 2021.

Reasons for Decision

[1] Mr. Kalu, a Nigerian citizen, seeks judicial review of the August 19, 2021 decision of the respondent, the Minister of Justice of Canada (“the Minister”), that he surrender to the United States for prosecution on the offences for which extradition is sought. These offences include conspiracy to commit mail fraud, mail fraud, conspiracy to launder monetary instruments, and money laundering. The Record of the Case sets out detailed allegations that between May 2017 and April 2019, while residing in the United States, Mr. Kalu, along with seven other individuals, defrauded each of several victims of thousands of dollars in various fraudulent schemes that primarily targeted elderly widowed women. Supporting evidence includes bank documents and WhatsApp communications, as well as the anticipated testimony of two of his alleged co-conspirators. This testimony is anticipated to show Mr. Kalu’s alleged involvement in the fraud, including that more than $850,000 in US dollars was personally funnelled by Mr. Kalu to accounts in his name or in the name of his alleged alias, “Kennedy Johnson”.

[2] Mr. Kalu and his common law spouse moved to Canada and claimed refugee protection in Canada with respect to Nigeria on June 8, 2019. He was arrested in Canada under s. 13 of the Extradition Act, S.C. 1999, c. 18, on October 15, 2020. On January 7, 2021, a deportation order was made against Mr. Kalu for serious criminality and organized criminality based on the US charges. As a result, on January 8, 2021, Mr. Kalu’s claim for refugee protection was terminated for ineligibility and rendered him inadmissible to Canada. He did not file an appeal of the termination of his refugee claim. On April 12, 2021, Mr. Kalu’s spouse was notified that she has status as a protected person in Canada. Her baby daughter with Mr. Kalu has been issued a birth certificate.

[3] On January 12, 2021, the Minister’s counsel in the International Assistance Group issued an Authority to Proceed. On March 24, 2021, in accordance with his consent, Mr. Kalu’s committal for extradition was ordered.

[4] In April 2021, Mr. Kalu through counsel made written submissions to the Minister against his extradition because of: 1) the risk of systemic racism in the US that would affect him should he be extradited to stand trial in Utah; 2) the fact his life would be put at risk were he to be extradited to the United States and eventually deported to Nigeria; and 3) the devastating impact extradition would have on his immediate family because of their health and financial circumstances.

[5] On August 19, 2021, the Minister decided to order Mr. Kalu’s unconditional surrender to the United States. The Minister determined that Mr. Kalu’s surrender would not be unjust or oppressive and would not violate s. 7 of the Canadian Charter of Rights and Freedoms for the following reasons:

1. The Minister accepted the US Department of Justice’s assurances of the many measures in place to address and mitigate potential racial bias in trials and sentencing.
2. The Minister determined that if extradited, Mr. Kalu’s immediate deportation from the United States was not inevitable because of the myriad procedural recourses to seek asylum and other relief that are open to him following his trial. Moreover, the Minister found that Mr. Kalu had not provided enough information to allow the Minister to determine whether Mr. Kalu would face a personalized risk of prosecution should he be returned to Nigeria.
3. Finally, while sympathetic to Mr. Kalu’s personal circumstances, the Minister concluded that they did not amount to the kind of exceptional conditions that outweighed the legitimate aims of extradition and Canada’s treaty obligations, given the financial, medical, and social supports that were available to Mr. Kalu’s spouse and daughter. He also noted that as an inadmissible person, Mr. Kalu is not authorized to work legally in Canada and is in any event likely to be deported if he remains in Canada because he is the subject of a deportation order.

[6] Mr. Kalu submits that the Minister unreasonably concluded that his surrender would not violate his s. 7 Charter rights or be unjust or oppressive because of: 1) Mr. Kalu’s fear that he might face persecution in Nigeria if he is surrendered to the US and then subsequently deported to Nigeria; and 2) the impact that his extradition would have on his immediate family. He seeks leave to file fresh evidence in support of his submissions.

[7] We are not persuaded by these submissions. On an application for judicial review of the Minister’s surrender decision, the applicable standard of review is that of reasonableness. It is not this court’s role to reassess the relevant factors considered by the Minister or substitute its own view. Rather, “the court must determine whether the Minister’s decision falls within a range of reasonable outcomes”: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41. In our view it does.

[8] As considered by the Minister, under s. 44(1)(a) of the Extradition Act, the Minister “shall refuse to make a surrender order if the Minister is satisfied that the surrender would be unjust or oppressive having regard to all the relevant circumstances”. A surrender order is unjust or oppressive, where, in all the circumstances, the order would “shock the conscience” of Canadians: United States v. Hillis, 2021 ONCA 447, at para. 67. The Minister considered all the relevant factors and determined, reasonably in our view, that Mr. Kalu’s circumstances did not meet the exceptional threshold that would justify the refusal of a surrender order. We see no basis to interfere with the Minister’s determination of whether the surrender would be unjust or oppressive, which “is entirely a matter of his discretion”: Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 37.

[9] We do not accept Mr. Kalu’s fresh evidence. If admitted, it would make no difference to the outcome of this application. There is in substance no new information contained in the fresh evidence that was not before and considered by the Minister, including Mr. Kalu’s membership in the Indigenous People of Biafra. The fresh evidence provides an update regarding his family’s circumstances which appears to paint a slightly brighter picture concerning his spouse’s educational and employment prospects and social supports.

[10] Finally, Mr. Kalu raises a new issue on this application that was not before the Minister. He submits that the Minister erred in failing to consider that the pre‑trial custodial term that Mr. Kalu has already served in Canada will render extradition pointless. He argues that the time spent incarcerated in Canada should be deducted from any sentence that may be imposed upon conviction in the United States.

[11] We give no effect to these submissions. First, the Minister can hardly be faulted for not considering an issue that was not submitted to him. Further, and in any event, credit for pre-sentence custody is not a matter for this court to consider but should be raised at the sentencing stage of proceedings in the United States, if Mr. Kalu is convicted: United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 91.

[12] For these reasons, we dismiss the application.

“L.B. Roberts J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”