Court File and Parties

CITATION: United States of America v. Amadi, 2016 ONSC 7977

COURT FILE NO.: CR-16-90000389

DATE: 20161220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Attorney General of Canada on behalf of the United States of America

v.

Ikechukwu Derek Amadi also known as Ike, Ikelo, Melvin, Jacob, Beamer, Beamish, Mark Hopkins

BEFORE: E.M. Morgan J.

COUNSEL: Heather Graham, for the Crown Sam Goldstein and Lori Dubin, for the Person Sought

HEARD: December 15, 2016

ENDORSEMENT on Bail pending extradition hearing

[1] Mr. Amadi has been charged with a number of fraud-related charges in the United States District Court for the Middle District of Florida. He brings this application for judicial interim release pending his extradition hearing.

[2] In addition, Mr. Amadi has been charged domestically for a number of money laundering, fraud and forgery-related offences under the Criminal Code. Bail was granted in respect of the Criminal Code charges in October 2015. After a search of Mr. Amadi’s residence in April 2016 a number of new Criminal Code charges were added, but these did not have an impact on the terms of his bail.

[3] In September 2016, Mr. Amadi brought an application to amend his bail conditions, including a request that he be permitted to travel with his spouse and children to Nigeria to visit his parents. That application was never heard on its merits and has now been abandoned in the face of the extradition proceedings. Mr. Amadi was arrested (or re-arrested) on the U.S. charges on December 6, 2015.

[4] Mr. Amadi currently has two sureties, the first being his spouse, Chanda Lockhart-Amadi. The second surety is his friend and co-owner of a restaurant that Mr. Amadi and his wife run, Imohimi Ifije Ahonkhai. There was previously a third surety, Shaheena Hemraj, who is a friend of Mr. Amadi’s and a real estate agent who recently sold the Amadi family home, but Ms. Hemraj has been released as a surety on the Criminal Code charges as it was determined that two sureties would suffice.

[5] Currently, the terms of Mr. Amadi’s release include that he reside with Ms. Lockhart-Amadi, that he observe a curfew from 11:00 p.m. to 6:00 a.m., that he surrender his passports (Canadian and Nigerian) and not apply for travel documents, that he not contact the co-accuseds in his case, that he be restricted from using electronic devices, that he not do any banking except in the company of his surety, and that he report once a week to the officer in charge of his case.

[6] The total amount of money currently pledged by his sureties is $45,000, composed of $25,000 by Ms. Lockhart-Amadi and $20,000 by Mr. Ahonkhai. When bail was first granted in October 2015, the amount pledged was $110,000, divided into $70,000 for Mr. Ahonkhai, $35,000 for Ms. Hemraj, and $5,000 for Ms. Lockhart-Amadi.

[7] Ms. Lockhart-Amadi, Mr. Ahonkhai, and Ms. Hemraj all testified in support of Mr. Amadi’s application for bail on the extradition charges, and they each indicated their willingness to again be sureties on his behalf. Ms. Lockhart-Amadi indicated that she was willing to raise the overall amount of bail to as high as $220,000, which was the amount initially pledged to support bail on the Criminal Code charges. I note, however, that it is not clear in the evidence in the record before me where that amount would come from.

[8] Mr. Ahonkhai testified that he has $20,000 in savings, but that is the amount of his pledge for the bail on the Canadian charges and he does not appear to have anything additional to put up in respect of the U.S. extradition proceedings. Ms. Hemraj stated that she has $8,000 in savings and $50,000 in equity in her home, while Ms. Lockhart-Amadi testified that she is willing to pledge another $20,000 (in addition to the $25,000 already pledged in respect of the domestic charges). On top of that, she indicated that she could pledge $50,000 which she has in a real estate investment in the United States. Even if Ms. Hemraj were to pledge her entire $58,000 in assets and Ms. Lockhart-Amadi her entire $70,000, it would not add up to the amount offered in respect of Mr. Amadi’s new bail.

[9] Although there is some similarity in the nature of the offenses with which Mr. Amadi is charged in the U.S. and Canada, the amounts at stake differ significantly. Specifically, the money laundering and other offenses with which he is charged in Canada, and for which he already has bail, amount to a total of $200,000, while the fraud and other offenses for which he is charged in the United States, and for which his extradition hearing is pending, amount some $8.8 million. This makes for an important change in circumstance. A letter from the Assistant U.S. Attorney in charge of Mr. Amadi’s case indicates that he faces the prospect of 15 to 20 years in prison if convicted by the court in Florida; his potential jeopardy in respect of the Canadian charges he faces is substantially less.

[10] Another significant change in Mr. Amadi’s circumstances in Canada since his last bail hearing on the domestic charges is that he has now sold the condominium in Mississauga where he and his family were living. Ms. Lockhart-Amadi indicates in her supporting affidavit that she and Mr. Amadi are now living in a rental apartment. She testified that they sold the condominium for $858,000, and that they had $118,000 of equity in the property. In her affidavit she indicated that some of that money was invested in the restaurant that they own together with Mr. Ahonkhai and his spouse, although she was vague as to exactly how much of this went into the restaurant. Her affidavit leaves blank the value of the equity in the restaurant, and when asked specifically about this by Crown counsel she did not come up with any figure.

[11] Mr. Amadi also owns a home in Nigeria, near the town where his parents live. Mr. Amadi himself was born in Canada, but has lived a large portion of his life in Nigeria. In cross-examination, counsel for the Crown put to him an expense ledger entitled “Ik’s Gwarinpa House Expense”, which Mr. Amadi identified as being in his mother’s handwriting and pertaining to the construction expenses for a house he has built near the city of Abuja, Nigeria. He testified that the house has been listed for sale but has not sold.

[12] Counsel for the Crown argues that neither Ms. Lockhart-Amadi nor Ms. Hemraj produced bank statements or any other documentation to corroborate their statements about the value of their assets. Counsel for Mr. Amadi points out that in their testimony both of them expressed their willingness to produce bank statements if necessary. As indicated, it does concern me that even taking their stated assets at the maximal value, they do not seem to have enough between them to cover the amount they propose to pledge – to say nothing of the fact that $50,000 of Ms. Lockhart-Amadi’s assets are tied up in a real estate investment in partnership with others in the United States, and so does not appear to be particularly liquid if it were called upon in these proceedings.

[13] Of greater concern is the fact that the Amadis have now sold their family home in Canada. There is a significant difference between a family that owns its home in Canada and one that rents in Canada and owns a house in a foreign country. While Mr. Amadi states that the house in Nigeria was built as an investment property, the fact remains that he owns a home in that country that is sitting empty and that is located in close proximity to where his parents reside. It is true, as both Mr. Amadi and Ms. Lockhart-Amadi stated, that they have chosen to live in Canada and not in Nigeria, where Mr. Amadi is a citizen, or in the Bahamas, where Ms. Lockhart-Amadi is a citizen. Nevertheless, home ownership is a badge of rootedness in Canada that was present when Mr. Amada got bail in 2015 and that is no longer a feature of his and his spouse’s life.

[14] Of greatest concern, however, is the nature of the offenses with which Mr. Amadi is charged. As the British Columbia Court of Appeal stated in USA v Edwards, 2010 BCCA 149, in an extradition case, “the court must look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings.” As indicated, the charges in the U.S. relate to a multimillion dollar fraud and carry a potentially lengthy prison sentence. On a cost-benefit analysis alone, it would take a substantially larger pledge to provide the necessary disincentive to breach the terms of recognizance in an $8.8 million case than in a $200,000 case.

[15] Finally, I am alert to the fact that the allegations against Mr. Amadi are such that suggest that he poses a risk under s. 515(10)(a) of the Criminal Code – i.e. a risk of flight. The correspondence from the Assistant U.S. Attorney indicates that Mr. Amadi was involved with passing off “High-quality forgeries of financial instruments, such as cashier’s checks. Those checks were created by forgers located overseas, including an individual residing in South Africa who was asked by one of Amadi’s associates to create fake passports and other travel documents.” Added to that, an affidavit from a police officer with the Toronto Fugitive Squad describes the domestic Canadian offenses with which Mr. Amadi has been charged as including unlawful possession of personal identity and unlawful impersonation.

[16] This combination of identity theft charges and involvement with persons abroad accused of passport forgery is, to say the least, worrisome. Counsel for the Crown submits, correctly, these features of the charges Mr. Amadi faces raise considerable risk, which is what s. 515(10)(a) requires the court to assess.

[17] The fact that the Amadis have sold off their one real property asset in Ontario leaves little with which to secure any pledge of money supporting Mr. Amadi’s bail. In addition, the lack of bank statements in the record makes it difficult for me to verify with any confidence that the pledges could ever be met. Moreover, while pledges in the amount of $45,000, or $110,000, or even $220,000 may be appropriate for the domestic charges faced by Mr. Amadi, this seems like a disproportionately small amount when compared with accusations of an $8.8 million fraud.

[18] Given the risks on the primary ground – i.e. that the detention is necessary to ensure Mr. Amadi’s appearance in court – the proposed monetary backing is too undocumented and too small. Bail, if granted, must be commensurate with the risks and with the magnitude of the offense for which his extradition is sought.

[19] It not impossible for Mr. Amadi to be granted judicial interim release on similar grounds as his existing terms of release for the Canadian offenses, but there would have to be stricter terms and a more substantial and verifiable financial commitment. As it stands, the current proposal and the evidence supporting it is insufficient.

[20] I am reluctant to express a view on how large a financial commitment is appropriate under the circumstances, as it is for Mr. Amadi and his counsel to work out a reasonable plan. However, the principle of proportionality calls for a substantially higher amount to be pledged for an $8.8 million offense than for a $200,000 offense.

[21] Moreover, a person who owns a condominium in Ontario is a far more secure surety than a person who rents their apartment and owns no real estate in Canada. Accordingly, Ms. Lockhart-Amadi is a notably less secure surety today than she was when she became her husband’s surety in October 2015. This adds to the fact that the commitment made by her as surety must be considerably more than made previously, although quantum may not entirely solve the problem. I am cognizant that the amount fixed for sureties must not be so high that an interim release order is effectively a detention order: R v Cichanski (1976) 1976 CanLII 1381 (ON SC), 25 CCC (2d) 84 (Ont SC). The problem here is as much the qualitative change in the Amadi family assets as their quantity.

[22] Although I make no finding in this respect, it is arguable under the circumstances that the monetary pledge by Ms. Lockhart-Amadi could be accompanied by a cash deposit in some amount. That might give the court the flexibility it needs to fashion a more secure bail arrangement for Mr. Amadi.

[23] I do note that s. 515(2)(e) of the Criminal Code on its face provides that this option of combining a pledged amount with a cash amount is only available where “the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody”. In R v Folkes (2007) 2007 ABQB 624, 228 CCC (3d) 284, further qualified at 2007 ABQB 733, [2008] 3 WWR 707, Marceau J. of the Alberta Court of Queens Bench reasoned that no proper judicial function was served by this bald distinction between a local accused and a long distance accused. In light of the right to reasonable bail under s. 11(e) of the Charter, he held that, “a Judge is able to release an accused on a recognizance under s. 515(2)(e) of the Code, with sureties and a cash deposit even if the accused is not resident in another province or residing over 200 km. away from their place of custody”: Folkes, at para 40.

[24] The parties here have not had an opportunity to argue this particular point, and so again I express no opinion as to the implications of s. 515(2)(e). If the matter is brought back for an increased quantum of bail, they will be at liberty to address the question of combining the surety pledges with a cash bail at that time.

[25] Accordingly, Mr. Amadi’s application is denied without prejudice to him re-applying, or re-submitting this application, with stricter conditions, improved documentary evidence of the sureties’ finances, and more substantial financial terms.

Morgan J.

Date: December 20, 2016