U.S.A. v. Mgbolu, 2015 ONSC 1273

COURT FILE NO.: CR-14-90000095-00M0

DATE: 20150226

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Attorney General of Canada On Behalf Of the United States of America v. Alex Mgbolu

BEFORE: E.M. Morgan J.

COUNSEL: Roy Lee, for the Applicant/Requesting State

Laurence Cohen, for the Respondent

HEARD: February 19, 2015

Reasons for Judgment

[1] Can the court in an extradition hearing order the Crown to disclose its correspondence with investigators in the foreign state? The question is raised here in order to determine whether there has been improper collusion between the two national authorities.

I. Background

[2] The Crown seeks to extradite Alex Mgbolu to the United States, where he has been charged with fraud. The charges relate to Mr. Mgbolu’s operation of a Western Union money transfer agency and other businesses, and to his alleged activities as a conduit for the transfer of monies paid by the victims of fraud.

[3] Mr. Mgbolu does not contest the evidentiary basis for committal. He concedes that the Crown has produced sufficient evidence to warrant committal for extradition.

[4] Rather, counsel for Mr. Mgbolu raises the concern that there has been a potential abuse of process and violation of fundamental justice and of Mr. Mgbolu’s rights under section 7 of the Charter. Specifically, counsel contends that a domestic Canadian prosecution of Mr. Mgbolu was commenced and then stayed in favour of extradition to the United States in circumstances that suggest some unfair behind-the-scenes manipulation in both countries.

[5] In furtherance of that concern, Mr. Mgbolu’s counsel seeks disclosure of correspondence between the Crown and the authorities in the United States who investigated this matter. Counsel has been clear that he does not seek production of any documents that are in the hands of the U.S. government or its agencies, but rather limits his application to documents, correspondence, emails, etc. that are in the hands of Canadian governmental authorities either at the federal or provincial level.

[6] There are three issues raised by Mr. Mgbolu’s contentions about the process to which he has been subjected. These will be addressed in turn: a) has he been prejudiced; b) is there an air of reality about the allegations of abuse of process/fundamental justice; and c) is the extradition hearing the correct forum for his complaint?

II. Issues and Analysis

a. Has Mr. Mgbolu been prejudiced?

[7] Mr. Mgbolu makes two distinct arguments about prejudice: the lengthy lapse of time, and the compromises he made in the domestic Canadian proceedings.

[8] In the first place, counsel for Mr. Mgbolu contends that the delay of several years between the time the investigation began in 2010 and Mr. Mgbolu’s arrest on the extradition warrant is itself prejudicial. In this regard, he is particularly focused on what he considers to be the inexplicable final 15 months of this delay which followed the Crown’s stay of all domestic charges against Mr. Mgbolu.

[9] The delay argument is a difficult one to make in the extradition context. As the Court of Appeal stated in France v Liang (2007), 2007 ONCA 741, 88 OR (3d) 12, at para 28, “…it is much harder to obtain a remedy for delay in an extradition proceeding than for delay in a domestic prosecution because activities that cross national boundaries and involve different legal systems are inevitably complex.” Since the Crown acts at the request of the foreign state in issuing the extradition warrant, the timing is to a great extent out of Canadian hands. Generally speaking, “[i]t is not the business of an extradition judge to assume responsibility for reviewing the actions of foreign officials in preparing the evidence for an extradition hearing”: Argentina v Mellino, [1987] 1 SCR 536, [1987] 1 SCR 536.

[10] Here, the delay of four years since the commencement of the investigation, and 15 months since the stay of the criminal charges when the evidence was nearly all in place, is unexplained by the Crown. That unexplained lapse of time on its own, however, does not connote prejudice to the extradition process or to Mr. Mgbolu.

[11] Perhaps the most dramatic demonstration of the difficulties of contending that delay is prejudicial is provided by USA v Hay, 2004 BCSC 884, where it was observed that even a delay of nearly three decades is not, without more, the kind of prejudice which an extradition court can invoke to stay proceedings. As the British Columbia Supreme Court put it, at para 29:

…it is somewhat mysterious why the United has waited 27 years to seek the extradition of someone who has been readily available to Canadian authorities for most of those 27 years. But absence or lack of motive does not amount to improper motive. And it is beyond the jurisdiction of this court to explore why the long delay.

[12] Mr. Mgbolu makes no argument that the delay has resulted in the disappearance of evidence, the vanishing of witnesses, or other potential ravages of time on the legal process. He says, simply and, perhaps understandably, that the delay is unexplained and therefore mysterious. That, however, does not suffice. In order to be effective, the allegation put forward by Mr. Mgbolu would have to support the remedy that he seeks, R v Larosa, 2002 CanLII 45027 (ON CA), [2002] OJ No 3219, at para 76, and even an entirely inexplicable delay of substantially more time than here would not support this court’s granting of a stay of extradition.

[13] Mr. Mgbolu’s second prejudice argument – that he has compromised his position over the course of defending the domestic proceedings – is not put forward as strenuously as his first, and for good reason. It is difficult to see the prejudice even taking his point at its highest.

[14] In essence, counsel for Mr. Mgbolu submits that at the preliminary inquiry stage of the domestic prosecution, the parties entered into an agreed statement of facts. This, of course, streamlined the proceedings, and under Canadian law was understood to be entered into for the sole purpose of expediting the preliminary inquiry. Counsel explains that Mr. Mgbolu entered into the agreement confident that under Canadian law the factual admissions made in that context could not be used against him later and would have to be proved at trial.

[15] Counsel for Mr. Mgbolu goes on to argue that now that the domestic charges have been stayed and extradition is sought, the admissions made by Mr. Mgbolu in order to expedite the preliminary inquiry may come back to haunt him. He states that it is uncertain what the U.S. prosecutors will make of the agreed statement of facts – it may serve to dispense with otherwise necessary proof in the U.S. criminal trial.

[16] Counsel submits that the American law on this point is unknown, but that for all we know Mr. Mgbulo may have prejudiced his own defense at an upcoming U.S. trial. Counsel for the Crown concedes that he also does not know the U.S. law on this point, although he suggests that Mr. Mgbolu could consider asking the Minister of Justice to seek assurances from the U.S. prosecutors that the preliminary inquiry admissions will not be used against him.

[17] For my part, I am in the same boat as all of the other lawyers in the room. I too do not know what the U.S. law is on use of an agreed statement of facts like the one entered into between the Crown and Mr. Mgbolu. The reason I do not know, of course, is that the record before me contains no expert evidence on point. It is trite to say that foreign law must be proved as fact in our courts: Yordanes v Bank of Nova Scotia (2006), 2006 CanLII 1777 (ON SC), 78 OR (3d) 590, at para 14 (SCJ). The absence of expert evidence regarding the relevant U.S. law equates not to the possibility of prejudice, but to an absence of evidence of prejudice.

[18] Indeed, as Farley J. noted in ABN Amro Bank NV v BCE Inc, 2003 CanLII 64276 (ON SC), [2003] OJ No. 5418, at para 13.3, “[a]bsent proof of the foreign law by expert evidence, the foreign law is presumed to be identical to the Ontario law”, citing Bank of Nova Scotia v Wassef (2000), 11 CPC (5th) 338, at para 17 (SCJ), and Gold v Reinblatt (1928), 1928 CanLII 504 (SCC), [1929] 1 DLR 959, at 961 (SCC). At the next stage of the extradition process it may still be open for Mr. Mgbolu and his counsel to provide the Minister of Justice with evidence that his cooperation with Canadian legal process has resulted in his being prejudiced under U.S. law; but at this point, there is no evidence of prejudice of which the court can take cognizance.

b. Is there an air of reality about the abuse of process/fundamental justice allegation?

[19] As Campbell J. observed in USA v Latina, 2015 ONSC 842, at para 25, there are two categories of disclosure requests that arise in extradition matters: one that goes to the fairness of the present hearing, and a second one that addresses more generalized abuse that “risks undermining the integrity of the judicial process” (para 25). Counsel for the Crown and counsel for Mr. Mgbolu both agree that the concerns raised here are in the second category; the alleged abuse of process is not based on the evidence brought here to support committal for extradition, but rather is based on the integrity of the U.S.-Canadian investigative and prosecutorial process.

[20] Counsel for Mr. Mgbulo submits that seeking to extradite following a stay of domestic criminal proceedings constitutes a form of double jeopardy contrary to article 4 of the Canada–United States Extradition Treaty. That article provides:

Extradition shall not be granted in any of the following circumstances…

(i) When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offence for which his extradition is requested.

[21] The court in USA v Qumsyeh, 2012 ONSC 5987, at para 33, reasoned that the stay in itself – separate from the possibility of a breach of section 7 of the Charter, which will be discussed below – does not amount to double jeopardy as described in section 4(i) of the Treaty. Generally speaking, there is nothing improper about staying domestic charges to facilitate extradition, as long as the prosecutorial authority acts in good faith: USA v Thamby, 2010 ONSC 2821, at para 15.

[22] In fact, the Court of Appeal has stated clearly that the Crown may commence, and subsequently stay, a domestic Canadian prosecution in favour of extradition to a foreign country: R v Larosa, 2002 CanLII 45027 (ON CA), [2002] OJ No 3219, at para 62. As Doherty JA put it in USA v Prudenza, 2006 CanLII 36484 (ON CA), [2006] OJ No 4321, at para 38, “I see nothing wrong with maintaining the Canadian criminal charges, assuming that they were brought bona fide, until the Minister decides whether to authorize extradition proceedings… it is only after the Minister of Justice has authorized extradition proceedings that the Canadian charges on the same offenses cannot remain outstanding.”

[23] Counsel for Mr. Mgbolu acknowledges that the Crown is not required to provide an explanation for its decision, and that “courts are reluctant to interfere with prosecutorial discretion in laying or withdrawing charges and will only do so in the clearest of cases”: USA v Magnifico, 2007 ONCA 535, at para 20. He also concedes that, “[i]t is not the business of an extradition judge to assume responsibility for reviewing the actions of foreign officials in preparing the evidence for an extradition hearing”: Argentina v Mellino, [1987] 1 SCR 536, at para 31.

[24] Accordingly, it is not the conduct of the Canadian authorities in commencing and subsequently staying the domestic proceedings that Mr. Mgbolu characterizes as an abuse; nor is it the conduct of the U.S. investigators acting on their own that is alleged to be abusive. What counsel for Mr. Mgbulo raises is an allegation of, or rather the spectre of, unknown manipulations done by Canadian authorities in conjunction with their American counterparts. He seeks disclosure of the communications between the two countries with a view to ascertaining any improper collusion between them to deny Mr. Mgbolu his rights or to extract an advantage over him that neither state on its own could achieve.

[25] The Court of Appeal made it clear in Larosa, at para 76, that “before ordering the production of documents and compelling testimony in support of allegations of state misconduct…there must be an air of reality to the allegations”. The Court went on to clarify, at para 78, that, “[a]n ‘air of reality’ means some realistic possibility that the allegations can be substantiated if the orders requested are made.”

[26] When it comes to the second category of abuse – i.e. that going to the overall integrity of the extradition process rather than to specific concerns about the fairness of the present hearing – the guiding authority is USA v Cobb (2001), 2001 SCC 19, 152 CCC (3d) 270 (SCC). In Cobb, at para 34, Arbour J. noted that the extradition judge has limited ability to consider issues that go beyond the presentation of evidence at the extradition hearing itself. She acknowledged, however, that conduct by the foreign authorities, or by Canadian authorities in concert with the foreign authorities, could result in an unfair committal hearing, or could amount to a violation of the principles of fundamental justice contrary to section 7 of the Charter. In particular, Arbour J. identified the threatening and inappropriate extra-judicial conduct by the foreign prosecutor in Cobb as an illustration of behaviour that could violate fundamental justice in a way that undermines the integrity of the entire extradition and trial process.

[27] To meet the criteria set out in Cobb, evidence of egregious conduct would have to be put before the extradition judge. At the very least, “there must be some evidentiary foundation for the request, or an air of reality to the allegation that the extradition hearing was unfair or an abuse of process”: USA v Earles, 2013 BCCA 20, at para 35.

[28] Counsel for Mr. Mgbolu points to the fact that the Crown brought domestic criminal charges well before the extradition request came from the United States, and that it had on the eve of trial in June 2012 sought an adjournment on the basis that it needed to collect just a bit more evidence and that it would shortly be ready to proceed. Indeed, he points out that Canada’s lead investigator in the case, Kathleen McCoy of the Competition Bureau Canada, presented a sworn affidavit to the criminal court in which she stated: “I can guarantee that even should we not be able to obtain all of the outstanding affidavits in that time frame, we will have sufficient evidence to proceed to trial and will not be asking for any further adjournments.” And yet, only weeks prior to the next trial date, the Crown stayed the proceedings against Mr. Mgbulo.

[29] As already indicated, counsel for Mr. Mgbulo wishes to get to the bottom of this state of affairs by reviewing the U.S.–Canada correspondence on the issue. He submits that there is something untoward about the way the process has been played out; it may or may not turn out to be bad faith or manipulation on the part of the two national authorities, but it does raise a question about the process.

[30] In my view, the suspicions expressed by counsel for Mr. Mgbulo, while understandable given the way the events have unfolded and the way that Ms. McCoy expressed herself, do not amount to evidence of a Charter breach. What Mr. Mgbulo wants at this stage is further disclosure so that he can determine whether a Charter breach has occurred.

[31] This professed need to explore the matter further does not rise to the level of evidence required for the court to interfere. As my colleague Thorburn J. said recently in USA v Cao, 2009 CanLII 65377 (ON SC), [2009] OJ No 4987, at para 38, “[i]t is not sufficient for the Applicant to merely raise the possibility that a violation has occurred. The air of reality test must be met by some evidence and not merely speculation.” In the record before me, there is no such evidence that goes beyond speculation.

c. Is this the correct forum for the complaint?

[32] Following the committal of a person by an extradition judge, section 40(1) of the Extradition Act puts the ball in the court of the Minister of Justice, who is empowered to order the surrender of the person to the requesting state.

[33] Although it is often said that the Minister’s decision is political in nature, see Idziak v Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 SCR 631, at para 56; Qumsyeh, at para 18, it is in fact a hybrid political-legal decision. Indeed, as an international legal decision, it seems inevitably to be so; it invokes the ideal of a transnational rule of law that contains, “for reasons internal to the ideal itself”, extra-legal factors of international relations and social order: M. Koskenniemi, “The Politics of International Law”, 1 EJIL 4, at 7 (1990). Extradition in the Minister’s hands is, like many international legal fields, a political and procedural regime that beckons substantive legal considerations: see, D. Kennedy, “The International Style in Postwar Law and Policy”, 10 Am U Int’l L Rev 671, 677-78 (1995).

[34] In making the surrender decision, it is the Minister who must keep front and centre both the relationship with the foreign treaty partner and the rights of the requested person under section 7 of the Charter: Lake v Canada (Minister of Justice), 2 SCR 761, at para 41; Canada v Schmidt, [1987] 1 SCR 536, at para 46; USA v Cotroni, [1989] 1 SCR 564, at para 19. In keeping with the nature of international legal relations, the decision – with its combined transnational and rights-oriented ramifications – is legislatively and constitutionally defined as an executive one: Khadr v Prime Minister, 2010 SCC 3, [2010] 1 SCR 44, at paras 34-35.

[35] A judge at an extradition hearing should therefore be very reluctant to pre-emptively interfere with the manner in which the executive may fulfill its responsibilities under the Extradition Act. As Watt J. put it in Germany v Schreiber, [2000] OJ No 2618, at para 72, the Minister and the extradition hearing judge “largely occupy ‘two different solitudes’”.

[36] A stay of proceedings is a drastic remedy, bringing a permanent end to the ability to try the offense without a trial on the merits in any jurisdiction: Latina, at para 61. For this reason, it is reserved for only the most egregious cases of denial of fundamental justice, based on substantial evidence of unfairness or abuse: Cobb, at paras 42-43.

[37] Except in the most severe cases as described in Cobb, it is for the Minister to consider the disclosure and other process type of issues raised by Mr. Mgbulo. As it was put in Qumsyeh, at para 55, no one has seen fit “to pass to extradition judges the recognized responsibility of the Minister… to ensure that a fugitive has adequate disclosure in relation to such issues [as double jeopardy, etc.]”.

[38] The Minister of Justice, or the Court of Appeal in reviewing the Minister’s decision, may see fit to order disclosure of the U.S.–Canada correspondence in circumstances where it would not be warranted for the extradition court to do so. The Supreme Court noted the Minister’s authority in this regard in USA v Kwok, 2001 SCC 18, [2001] 1 SCR 532, at paras 103-104:

At the stage of the surrender decision by the Minister, s. 6 interests are engaged and the fugitive is entitled to submit materials in support of any issue relevant to the Minister’s decision, including materials supporting any constitutional claim. In the absence of disclosure, the appellant argues that he was denied the ability to make effective s. 6 representations at this crucial stage.

The Minister has a duty of fairness to ensure that the fugitive has adequate disclosure of the case against him or her and a reasonable opportunity to state his or her own case.

[39] Given that this is not a case like Cobb – there is no patent, extra-judicial conduct in violation of the principles of fundamental justice by a legal authority of either Canada or the requesting state – it is for the Minister to decide the abuse of process and other Charter issues. It is likewise for the Minister to determine the disclosure question on which Mr. Mgbulo’s other concerns will turn.

[40] It is not for this court to “pre-emptively intervene in a sphere of responsibility statutorily allocated to the Minister”: Qumsyeh, at para 55.

III. Disposition

[41] Mr. Mgbulo’s application for a stay of extradition and/or an order for disclosure is dismissed. As in Qumsyeh, at para 34, “[i]t is dismissed, however, without prejudice to it being renewed before the Minister…”

[42] Mr. Mgbulo is committed for extradition.

Morgan J.

Date: February 26, 2015