ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: Ex-186/11
DATE: 20121009

IN THE MATTER OF an Application pursuant to section 29 of the Extradition Act for an Order for the Committal of Christopher Ozurus to await Surrender to the

United States of America

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant/Requesting State - and - CHRISTOPHER OZURUS Respondent/Person Sought for Extradition

A. Rice for the Applicant
R. Rusonik , for the Respondent

HEARD: October 4, 2012

G.R. Strathy J.

[ 1 ] On October 4, 2012, I issued an order for committal of the respondent Christopher Ozurus into custody, pursuant to s. 29 of the Extradition Act , S.C. 1999, c. 18, to await surrender to the United States of America for an offence corresponding to fraud contrary to s. 360 of the Criminal Code . I gave short oral reasons for my decision and stated that I would amplify those reasons in writing. These are my reasons.

[ 2 ] On May 25, 2011, the Minister of Justice authorized the Attorney General of Canada to proceed before this court to seek an order for the committal of the respondent and others who are sought for prosecution in the United States for engaging in fraudulent mass marketing schemes, thereby committing an offence under United States law corresponding to the Canadian offence of fraud. [1]

[ 3 ] The evidence available to the United States is described in detail in the Record of the Case (ROC), the Supplemental Record of the Case (SROC) and the Second Supplemental Record of the Case (SSROC). [2]

[ 4 ] In overview, it is alleged that the respondent and others engaged in a scheme to defraud American victims by misrepresenting that they had won a lottery prize or had become the beneficiary of a large monetary windfall. As part of the fraud, a victim was generally sent a cheque, which was in fact counterfeit, which they were to deposit in their bank account. The next steps were described in the factum of the Attorney General as follows:

The mass marketers instructed the victims to transfer the cashed funds via wire transfer to named recipients, whose names were both true and fictitious. In the case of the fictitious recipients, complicit agents at the money transfer outlets entered false identification information into their systems to remove the victims’ transferred funds and afterwards met with the marketers to exchange the cash. In the other cases, individuals known as “runners” would retrieve the victims’ transferred funds under their own names and then deliver the funds via a second transfer to the mass marketers. For their part in the scheme, the runners and complicit agents received a 10% commission. The victims did not receive the items promised and were subjected to collection activity by the banks which cashed the counterfeit cheques.

[ 5 ] It is alleged that Mr. Ozurus was one of the “complicit agents”. In particular, it is alleged that he and his business partner Stanley Akubueze (Akubueze), operated a business in Toronto called the Afro Spot Lounge which initially contained a Western Union wire transfer outlet and later a MoneyGram outlet. It is alleged that Mr. Ozurus and his partner processed victims’ money through this business and turned it over to the mass marketers, in exchange for a commission.

[ 6 ] A substantial body of evidence has been collected by the applicant, from victims as well as from cooperating witnesses who were participants in the scheme, to establish that the respondent was an active participant in the scheme. In particular, the ROC indicates that one of the mass marketers, Friday Godwin Anigozie (Anigozie), who was formerly active in the scheme, is expected to be available to testify at trial that Mr. Ozurus and Akubueze used their facilities to process wire transfers on behalf of various participants in the fraudulent scheme, in exchange for a commission. The same witness is expected to testify that Mr. Ozurus was also involved in the manufacture and distribution of counterfeit cheques and sweepstake notices that were used as part of the fraudulent scheme.

[ 7 ] The ROC indicates that another former active participant in the mass marketing fraud, Charles Olutu (Olutu), is also expected to testify concerning the activities of Mr. Ozurus in the use of the Afro Spot Lounge to process wire transfers made by victims of the fraudulent scheme.

[ 8 ] The ROC indicates that other witnesses are expected to testify that wire transfers made by specific victims of the scheme were processed and cashed at the Afro Spot Lounge by Mr. Ozurus and his partner Akubueze. Moreover, the SSROC certifies that the evidence of Akubueze himself will be available for trial. It is anticipated that Akubueze himself will testify that, between October 2004 and August 2006, Mr. Ozurus processed money transfers in bulk by entering fictitious information about payees and that he and the respondent received a “cut” from the proceeds of the mass marketing fraud.

[ 9 ] There is also evidence that Mr. Ozurus met on a regular basis with Akubueze, Olutu, Anigozie and others for the purposes of discussing the mass marketing scheme.

[ 10 ] I do not propose to review all the evidence contained in the ROC, the SROC and the SSROC. They contain a substantial body of evidence, not only from victims and investigators, but also from actual participants in the scheme who have cooperated with the prosecuting authorities, to establish that Mr. Ozurus was a participant in the fraudulent scheme. The evidence also traces the flow of the victims’ funds through the Afro Spot Lounge and into the hands of Mr. Ozurus and the mass marketers.

[ 11 ] The Extradition Act provides that on receipt of a request for extradition, the Minister of Justice must first issue an authority to proceed in accordance with s. 15 of the Act, authorizing the Attorney General to seek on behalf of the extradition partner, an order of a court for the committal of the person to be extradited under s. 29 . A judge must then examine the request for extradition and the supporting material to determine whether the person to be extradited should be committed.

[ 12 ] There is a two step test for committal for extradition under s. 29(1)(a) of the statute. First, the extradition judge must be satisfied that, had the offence occurred in Canada, there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. Second, the judge must be satisfied, on a balance of probabilities, that the person before the court is the subject of the extradition request: United States of America v. Sheppard , 1976 8 (SCC) , [1977] 2 S.C.R. 1067 (S.C.C.) ; United States of America v. Ferras , 2006 SCC 33 () , [2006] 2 S.C.R. 77 (S.C.C.) ; Republic of the Philippines v. Pacificador (1993), 1993 3381 (ON CA) , 83 C.C.C. (3d) 210 (Ont. C.A.) .

[ 13 ] My function in applying the first part of this test is a modest one. I am required to ensure that the evidence establishes a prima facie case that the crime for which extradition is sought has been committed by the respondent: Republic of Argentina v. Mellino, 1987 49 (SCC) , [1987] 1 S.C.R. 536 . As the Court of Appeal noted in United States of America v. Tomlinson (2007), 2007 ONCA 42 () , 216 C.C.C. (3d) 97 (Ont. C.A.) , at para. 47 , leave to appeal dismissed, [2007] S.C.C.A. 179:

To summarize, I am satisfied that if there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed, could convict, the test for committal will have been met. In that regard, it matters not whether the case against the person sought is "weak" or whether the prospect for conviction "unlikely". The ultimate question of guilt or innocence is for the trial court in the foreign jurisdiction.

[ 14 ] The test I am required to apply to the evidence on this hearing is not the same test that would be applied at a trial. This is not a trial and it is not my duty to determine the guilt or innocence of Mr. Ozurus: U.S.A. v. Dynar , 1997 359 (SCC) , [1997] 2 S.C.R. 462 at para. 122 ; Germany v. Schreiber [2000] O.J. No. 2618 (S.C.J.) at para. 57 .

[ 15 ] The evidence admissible on an extradition hearing is set out in s. 32 of the Act and includes an ROC. Section 33 provides that the ROC must contain a summary of the evidence available to the extradition partner for use in the prosecution of the person sought and it must be certified by a judicial or prosecuting authority of the extradition partner that the evidence summarized is sufficient under the law of the extradition partner to justify prosecution. This requirement has been met in the case before me.

[ 16 ] Mr. Ozurus, in his own submissions, asserted that the evidence in the ROC is hearsay, that it is unsworn, and that it is false. The evidentiary requirements applicable to criminal trials do not apply to an extradition proceeding. The documents in the ROC, the SROC and the SSROC have been properly certified and they are admissible whether or not they are in affidavit form: see s. 34 of the Extradition Act . [3] There is no evidence before me to establish that the evidence contained in the ROC is unreliable or that the witnesses are not available to testify.

[ 17 ] I am satisfied that the first part of the s. 29(1)(a) test had been met. The evidence raises a prima facie case that Mr. Ozurus committed the actus reus of fraud and that he had the necessary mens rea – he was a knowing participant in a mass marketing scheme that made false representations to victims and deceived them into making wire transfers that were received by him at the Afro Spot Lounge and distributed to himself and other participants in the scheme.

[ 18 ] I am also satisfied that the person before the court, Mr. Christopher Ozurus, is the person sought by the United States. He has the same name as the person sought. He has been identified by two witnesses, Olutu and Anigozie, both of whom participated in the alleged fraud, as a partner in the Afro Spot Lounge and a participant in the fraudulent scheme. I have examined the photograph of Christopher Ozurus identified by these witnesses, and I am satisfied that it is a photograph of the person before the court. The Attorney General has met the second part of the s. 29(1)(a) test.

[ 19 ] For these reasons, I have issued an order issued committing Christopher Ozurus into custody pursuant to s. 29 of the Extradition Act , to await surrender for the offence set out in the Authority to Proceed.

G.R. Strathy J.

Released: October 9, 2012

COURT FILE NO.: Ex-186/11

DATE: 20121009

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant/Requesting State - and - CHRISTOPER OZURUS Respondent/Person Sought for Extradition

REASONS FOR JUDGMENT G.R. Strathy J.

Released: October 9, 2012

[1] The Authority to Proceed was filed as Exhibit 1 in this proceeding.

[2] The ROC, SROC and SSROC were collectively filed as Exhibit 2 in this proceeding.

[3] A document is admissible “whether or not it is solemnly affirmed or under oath”.