Court File and Parties
COURT FILE NO.: CR/16/90000/38900MO DATE: 20170605 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 Respondent
- and - IKECHUKWU AMADI Applicant/Person Sought -and- AKHOMEN IGHEDOISE Applicant/Person Sought
Counsel: Elaine Krivel Q.C., counsel for the Attorney General of Canada Philip Campbell and Gabriel Gross-Stein, counsel for Mr. Amadi Stephen DiClemente, counsel for Mr. Ighedoise
HEARD: May 5, 2017
M. Forestell J.
Ruling on Application for Disclosure
Overview of the Application
[1] The Applicants are sought by the United States of America for extradition on charges of conspiracy to commit wire and mail fraud and conspiracy to launder money. The indictment in the United States was filed on September 25, 2015. The Record of the Case (“ROC”) was filed on January 25, 2017 and the Authority to Proceed was filed on January 30, 2017.
[2] The ROC alleges that the Applicant Ighedoise perpetrated frauds and that the Applicant Amadi set up bank accounts to collect the proceeds of the frauds. The ROC describes the fraudulent schemes and describes emails and chat logs obtained from production orders in the United States that are related to the schemes. In addition to the evidence gathered in the United States, the ROC describes evidence obtained pursuant to search warrants and production orders in Canada.
[3] The evidence gathered in Canada consists of data extracted from electronic devices belonging to the Applicants. Electronic devices belonging to the Applicant Ighedoise were originally searched at Toronto Pearson International Airport (“Pearson Airport”) by U.S. Customs officers. This was done without a warrant. Mr. Ighedoise was handed over to Peel Regional Police and charged with criminal offences. The devices were detained by Peel police. Data was extracted from the devices pursuant to a Canadian search warrant. Subsequent Canadian search warrants were obtained for electronic devices and for the homes of the Applicants. A production order was obtained for the phone records of the Applicant Amadi.
[4] The evidence gathered in Canada provides the connection between the Applicants and the email addresses and phone numbers referenced in the ROC.
[5] The Applicants were both charged with offences in Canada that related to the fraudulent schemes. Mr. Ighedoise pleaded guilty to his Canadian charges. Mr. Amadi had set a date for a preliminary inquiry and was pursuing disclosure with respect to the charges when, on February 23, 2017, his charges were withdrawn and he was arrested on an extradition warrant. Mr. Ighedoise was also arrested that day on an extradition warrant.
[6] At the time of the withdrawal of the Canadian charges, Mr. Amadi had been provided with disclosure of an Information to Obtain (“ITO”) for the search warrant for his house, but he had not received disclosure of the ITOs for the other five search warrants related to the investigation or for the production order for his telephone records. The Assistant Crown Attorney prosecuting the Canadian charges had promised to provide the requested disclosure.
[7] In this Application, the Applicants seek disclosure of the notes of United States customs officials and Canadian police officers concerning the detention of the Applicant Ighedoise and the initial warrantless search and seizure of his electronic devices. They also seek disclosure of the ITOs for the subsequent search warrants and production order.
[8] The Applicants also seek disclosure of the communications between the Canadian prosecutors involved in the Canadian charges, the federal Crown, International Assistance Group and the Assistant United States Attorney (AUSA).
[9] Specifically, the Applicants seek an order requiring the disclosure of the following:
- The notes of the U.S. customs officials who detained and searched Mr. Ighedoise on August 21, 2014;
- The notes of the Peel police officers involved in Mr. Ighedoise’s arrest on August 21, 2014 and the seizure of his electronic devices;
- The ITO for the search warrants and production order dated October 8, 2014, December 16, 2014, February 20, 2015, May 14, 2015 and September 28, 2015 [1];
- All communications between the provincial Crown, the federal Crown, the International Assistance Group, and the U.S. Attorney regarding the prosecution and extradition of the Applicants.
Evidence on the Application and Chronology of Events
[10] The record on this application includes the ITO from the search of the Applicant Amadi’s home. That ITO sets out a much more detailed history of the investigation than the ROC. The record also includes an affidavit from Mr. Amadi’s counsel on the Canadian charges which outlines the history of the Canadian proceedings. From this record, a chronology of the investigation may be discerned.
[11] In September 2012 D.C. Kelly of the Toronto Police Service began investigating frauds that he believed were being committed by individuals who were part of an organization known as “Black Axe”. In February of 2014 D.C. Kelly learned that the Applicant Ighedoise was a director of a Canadian corporation that appeared to be associated with the organization.
[12] On July 4, 2014 D.C. Kelly provided a list of people he believed to be associated with Black Axe to D.C. Shaun Genovy, a Toronto Police officer seconded to the Department of Homeland Security in Buffalo, New York.
[13] On August 21, 2014 the Applicant Ighedoise tried to fly from Pearson Airport to Atlanta, Georgia. He was stopped by U.S. Customs and Border personnel at Pearson.
[14] D.C. Kelly was later informed that the U.S. officials found that Mr. Ighedoise possessed a credit card that was not in his name. The U.S. officials then searched his electronic devices and read messages that appeared to them to indicate that Mr. Ighedoise was conspiring to commit fraud. The U.S. officials denied Mr. Ighedoise entry to the U.S. Peel Regional police were contacted and Mr. Ighedoise was arrested at Pearson airport and charged with possession of a counterfeit credit card, conspiracy to commit an indictable offence and possession of property obtained by crime. The Peel police seized 5 electronic devices when they arrested Mr. Ighedoise.
[15] D.C. Kelly was notified by U.S. officials about the detention, search and arrest of Mr. Ighedoise on August 21, 2014. On August 22, 2014 DC Kelly read the Peel police report on the arrest. He spoke to the officer in charge of the investigation on August 25 and 26, 2014. The Peel officer in charge, Constable Natt, told D.C. Kelly that he was too busy to draft search warrants for the electronic devices. D.C. Kelly offered to draft the search warrants. On October 8, 2014 a search warrant was granted for the search of the 5 devices seized by Peel police from Mr. Ighedoise. D.C. Kelly picked up the devices from Peel and delivered them to the Ministry of Finance Data Recovery Unit to be examined. On November 9, 2014 D.C. Kelly received the results of the data extraction for 3 of the 5 devices. The other two devices were password protected and had to be sent to Apple to access the data.
[16] Based on the information received from the data extraction, D.C. Kelly interviewed a person he believed had been defrauded. She identified Mr. Ighedoise as the person who perpetrated the fraud.
[17] In the days after he received the data, D.C. Kelly reviewed communications between an email he believed was associated with Mr. Ighedoise and phone number 416-877-7419. The communications appeared to be instructions to transfer funds. D.C. Kelly believed that the discussion related to money laundering. He searched police databases and found that the number was associated with Mr. Amadi.
[18] On December 10, 2014 D.C. Kelly learned that the Peel charges against Mr. Ighedoise had been withdrawn. He returned to Peel and seized the electronic devices. He then presented a Form 5.2 to a Justice of the Peace listing items seized from Peel and seeking authorization to continue the seizure. The authorization was refused by the Justice of the Peace on the grounds that the charges had been withdrawn and more than 90 days had passed since the seizure.
[19] On December 16, 2014 D.C. Kelly obtained two warrants for the seizure of the electronic devices. He subsequently (it is not clear when) provided a 5.2 report and received authorization to hold the devices.
[20] On February 23, 2015 D.C. Kelly obtained a search warrant for Mr. Ighedoise’s home. Electronic devices, bank documents and other documents were seized.
[21] On February 25, 2015 a warrant was issued for the arrest of Mr. Ighedoise who was arrested upon returning to Canada on April 24, 2015.
[22] On May 14, 2015 D.C. Kelly obtained a production order for the phone records for the number that he believed was associated with Mr. Amadi. The records were provided on June 12, 2015 and confirmed the association.
[23] On September 28, 2015 D.C. Kelly sought a search warrant for Mr. Amadi’s home. The application was denied.
[24] On October 6, 2015 D.C. Kelly applied again for a warrant for Mr. Amadi’s home and the application was granted. The warrant was executed on October 7, 2015 and Mr. Amadi was arrested. The ITO for the October 6, 2015 warrant was disclosed to Mr. Amadi’s counsel on his Canadian charges.
[25] Mr. Ighedoise and Mr. Amadi were prosecuted jointly on the Canadian charges. A preliminary inquiry was scheduled for March 20-31, 2017.
[26] On December 8, 2016 Mr. Amadi was arrested pursuant to an extradition warrant.
[27] On January 20, 2017 a focus hearing was held on the Canadian charges. Counsel for Mr. Amadi requested all of the ITOs for the search warrants and production order. The Assistant Crown Attorney prosecuting the matter agreed that the material should be provided and indicated to the Court on the focus hearing that the disclosure of the ITOs would be forthcoming.
[28] No further disclosure was made. Counsel for Mr. Amadi brought the matter forward to February 23, 2017 to seek disclosure. On that date, the Crown withdrew the charges. Also on that date, Mr. Ighedoise was arrested on an extradition warrant.
Positions of the Parties
[29] The Applicants seek disclosure to support an allegation of a breach of their s. 8 and 9 rights by the warrantless search of Mr. Ighedoise’s phone by U.S. Customs officials at Pearson Airport on August 21, 2014 and by the failure of the police to comply with s. 489.1(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46 requiring police to bring seized items before a Justice of the Peace as soon as practicable for an order detaining the items.
[30] The ITOs for the subsequent search warrants are alleged to be based on the information obtained through the Charter breaches.
[31] The Applicants further seek disclosure to support an allegation that the prosecutors abused the process of the court in timing the withdrawal of the Canadian charges to frustrate the attempt on the part of the Applicant Amadi to obtain disclosure. It is argued that the timing of the charges and the withdrawal enabled the authorities to obtain search warrants and retain the fruits of the search without disclosing the basis for the search. It is alleged that the conduct of the prosecution was designed to undermine the disclosure rights of the Applicants.
[32] The Respondent argues that there is no air of reality to the claims of Charter breaches. The Respondent submits that the initial warrantless search was a border search authorized by statute and therefore raises no Charter concerns. The subsequent seizure by Peel police was a seizure incident to arrest and all subsequent searches and seizures were authorized by warrant.
[33] With respect to the abuse of process argument, the Respondent submits that there is no basis for the allegation that the prosecution acted improperly. The Canadian charges were pursued until a decision was made that the United States was a more appropriate forum for the prosecution. There is no basis to attribute the timing of the withdrawal to a plan to undermine the disclosure rights of the Applicants.
Legal Test for Disclosure
[34] In United States of America v. Dynar [2], the Supreme Court of Canada affirmed the principle in United States of America v. Whitley [3] that the fugitive in an extradition case is entitled to know the case against him or her. The Court interpreted this right as meaning that, “In light of the purpose of the hearing, however, this would simply entitle [her] to disclosure of materials on which the Requesting State is relying to establish its prima facie case.”
[35] Section 32(2) of the Extradition Act, S.C. 1999, c. 18 provides that evidence gathered in Canada must satisfy the rules of evidence under Canadian law to be admitted in an extradition hearing. This applies to the evidence referred to in the ROC if it is evidence that was gathered in Canada. [4]
[36] There is essentially no dispute between the parties with respect to the legal principles governing this application. Evidence gathered in Canada that is presented in the ROC may be challenged under the Charter. A Charter breach allegedly committed in the gathering of evidence in Canada may lead to the exclusion of the evidence on the extradition hearing.
[37] The rationale for this approach was articulated by Moldaver J.A. in United States v. McDowell [5] as follows:
…there is good reason for Canada to insist that evidence gathered in Canada conform substantively with our rules of evidence. such a rule does not place an onerous burden on the requesting partner. It does however preserve the integrity of our justice system by affording fugitives the protection of our laws and values while they remain in Canada. In that way, the Act provides a front-line check on the methods used by both foreign and domestic law enforcement agencies to collect evidence in Canada.
[38] In United States v. Anekwu [6], Charron J., writing for the Court, wrote at para. 29:
“…since compliance with Canadian rules of evidence is mandatory in respect of Canadian-gathered evidence, it follows that the record of the case should contain sufficient information to enable the person sought and the extradition judge to ascertain whether any item of evidence has been gathered in Canada and when that is the case, some information should also be provided about how it was obtained. As in any Charter application, the requisite evidentiary basis may be found in the evidence filed by the requesting state, or the applicant may present his or her own evidence. In addition the extradition judge may order the production of materials relevant to any issue properly raised at the committal stage of the process where there is an air of reality to the Charter claim.
[39] Similarly in United States v. Kwok, Arbour J. wrote that the extradition judge may order the production of materials relevant to a Charter challenge “when it is expedient to do so, including …when there is at least an air of reality to the Charter claims.” [7]
[40] The Court of Appeal for Ontario in United States v. Larosa [8] articulated a three-step approach to the air of reality test for disclosure in the extradition context: (1) the allegations must be capable of supporting the remedy sought; (2) there must be an air of reality to the allegations; and (3) it must be likely that the documents sought and the testimony sought would be relevant to the allegations.
[41] Doherty J.A., writing for the Court in Larosa, supra, described the air of reality criterion and “some realistic possibility that the allegations can be substantiated if the orders requested are made.”
[42] In U.S.A. v. Chu et al. [9], Himel J. applied the air of reality test to a request to unseal a wiretap authorization. Justice Himel held that absent an air of reality to a Charter claim, the Applicant was not entitled to an order unsealing the packet.
Analysis and Conclusions
(i) Alleged breaches of Applicants’ Rights under ss. 8 and 9 of the Charter
[43] The Applicants allege ss. 8 Charter breaches in this case arising from the first warrantless search at the airport and from the subsequent detention of the electronic devices without compliance with the provisions of s.489.1. They submit that the subsequent warranted searches are likely based, at least in part, on the fruits of the initial searches. They allege a s.9 breach arising from the arrest of the Applicant Ighedoise by Peel police based on the fruits of the warrantless search.
[44] The Respondents argue that there is no air of reality to the allegations. The Respondents submit that the initial warrantless search was conducted at the border pursuant to statutory authority and in circumstances where there is a substantially reduced expectation of privacy. The subsequent searches were authorized by warrant. Although there was initially no compliance with s.489.1 of the Criminal Code this error was committed in good faith and was corrected by the subsequent warrants and reports.
[45] The initial detention of the Applicant and examination of his belongings were likely conducted pursuant to the Preclearance Act, S.C. 1999, c. 20. The Act authorizes a preclearance officer to preclear travelers and goods in Canada for entry into the United States. The Act permits an officer who is designated by the United States to perform ‘preclearance duties’ including searches of travelers and examination of goods.
[46] The Act permits the preclearance officer to detain any traveler if the officer has reasonable grounds to believe that the traveler has committed an offence under an Act of Parliament. Where the officer believes that the traveler has committed an offence, the office must deliver the person into the custody of a Canadian police officer as soon as possible (s. 24).
[47] A preclearance officer has limited powers to seize any items. Under the Act, a preclearance officer must detain anything the possession or handling of which the officer believes on reasonable grounds to be an offence under Canadian law and anything the officer believes on reasonable grounds will afford evidence of such an offence (s. 26).
[48] The power of U.S. preclearance officers to examine goods under s. 25(1) the Preclearance Act is essentially the same as the power Canadian customs officers have to examine goods under s. 99(1) of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.). Section 99(1) of the Customs Act has generally been held by trial courts in this province to authorize warrantless searches of electronic devices. [10]
[49] A distinction was drawn, however, in R. v. Appleton [11] between an investigation in furtherance of an arrest and a search for goods. In Appleton, a Customs officer found a gun in the glove box of a car crossing the border. Mr. Appleton was arrested by the Customs officer and police were called. His cellular phone was seized upon his arrest. Hours after the arrest, another officer examined the data on the cellular phone. The police later arrived to take custody of Mr. Appleton. The trial judge in that case found that Mr. Appleton’s s.8 rights had been breached when the officer searched the data on the phone without a warrant. The search of the phone was held to be in furtherance of an investigation and not an “examination of goods”. The evidence was, however, admitted following a s. 24(2) analysis.
[50] The search powers of border agents under the Preclearance Act and the Customs Act have not been considered by the courts since the release of the judgment of the Supreme Court of Canada in R. v. Fearon [12]. While there is undoubtedly a reduced expectation of privacy upon crossing a border, there is also a reduced expectation of privacy upon arrest as articulated in Fearon. This does not mean that the power to search is limitless. The proposed argument that there are limits to the power to search electronic devices at the border has an air of reality.
[51] Even without the re-examination of the limits of border searches post-Fearon, the s. 8 argument has an air of reality. The statutory authority to search and seize under the Preclearance Act has limits. If the preclearance officers searched the devices, as they appear to have done, after finding the credit cards that prompted the detention of Mr. Ighedoise on the grounds that they believed him to have committed an offence under Canadian law, the search of his electronic devices may be found not to have been conducted as an examination of goods, but in furtherance of an investigation. A seizure of the devices by the preclearance officials could be found to go beyond the scope of their power under the Act. Section 26 of the Act only permits the seizure of a thing where its possession is an offence.
[52] The arrest of Mr. Ighedoise by Peel officers was also argued by the Applicants to be subject to challenge as a breach of his s. 9 rights. It was submitted that if the officers relied upon the report of the preclearance officers with respect to the devices as a basis for the arrest, the Applicants could advance a s. 9 argument. I do not see any air of reality to this argument on the record before me. Mr. Ighedoise was arrested in possession of what were believed to be stolen or fraudulent credit cards. Peel police were entitled to arrest him for offences related to the credit cards.
[53] While I do not see an air of reality to the s. 9 argument, the notes of the Peel officers with respect to the arrest must be disclosed. Peel police seized the 5 electronic devices. The seizure and retention can only be justified if the devices were seized incident to the arrest. Disclosure of the information provided by the U.S. officials to Peel and the grounds for the arrest is necessary to assess the grounds for the seizure.
[54] The applicants also argue that the failure to comply with s. 489.1 of the Criminal Code on the part of Peel police and D.C. Kelly constituted a breach of the Applicant’s s. 8 rights after the seizure of the devices and after the search warrant R. v. Garcia-Machado, 2015 ONCA 569 [13]. Peel officers, following the arrest of Mr. Ighedoise, detained the electronic devices. No report appears to have been made pursuant to s. 489.1 of the Criminal Code. The October 8, 2014 search warrant that was obtained by D.C. Kelly was said [14] to relate only to the charges laid by Peel. Sometime before December 10, 2014 the charges were withdrawn.
[55] There is an air of reality to the argument that the failure to comply with s. 489.1 after the warrantless seizure, the seizure pursuant to warrant and after the withdrawal of the charges was a breach of the Applicant’s s. 8 rights.
[56] It is likely that the ITOs for the search warrants for the electronic devices, the search warrant for the home of Mr. Ighedoise and the production order for the telephone records of Mr. Amadi relied upon the information from the original search. It is not speculative to draw this inference given the reliance of D.C. Kelly on this information in the ITO that was disclosed for the search warrant for Mr. Amadi’s home.
[57] There is an air of reality to the allegation that the warrants may be tainted by the circumstances of the original search and the failure to report. The ITOs and warrants should be disclosed.
[58] On an application for disclosure in the extradition context, the Applicants are not required to show the Charter argument is certain to succeed. The air of reality test is met when the applicants can articulate an argument that has merit and will support the remedy sought and where the record supports a reasonable expectation that the proposed disclosure will support the argument. The applicants have easily met that threshold in this case. The proposed s.8 argument, if successful, is capable of supporting the exclusion of the Canadian-gathered evidence. The argument has merit. I need not find that the argument will be successful but I find that it is far from a ‘fishing expedition’. The Applicants seek specific items of disclosure related directly to the articulated allegations of breaches. The ROC lacks the necessary detail with respect to the circumstances of the gathering of the Canadian evidence. The record on the application provides evidence to support the conclusion that the disclosure sought will support the allegations.
[59] Therefore, I find that the Applicants are entitled to an order for the disclosure of the notes of the U.S. Customs officials who detained Mr. Ighedoise and examined his belongings, the notes of the Peel officers who arrested and detained Mr. Ighedoise and who seized his electronic devices and the ITO’s of the subsequent search warrants and production order.
[60] At least some of the requested ITOs are sealed. The test for the disclosure of the sealed ITOs is the same as the test for any other disclosure. There must be an air of reality to the argument. I have concluded that there is an air of reality and the ITOs should therefore be unsealed, provided to the Crown for vetting and then disclosed to counsel for the Applicants. There is no suggestion that there is any impediment to the unsealing of the ITOs. The position taken by the provincial Crown while the Canadian charges were proceeding was that the ITOs could be unsealed and disclosed.
(ii) Alleged s. 7 Breach
[61] The Applicants have also alleged that there is an air of reality to an allegation of a s. 7 breach on the grounds of an abuse of process. To establish an abuse of process the applicants must show on a balance of probabilities that prosecutorial misconduct contravened fundamental notions of justice and undermined the integrity of the judicial process.
[62] The Applicants point to the evidence of communication between Canadian and U.S. prosecutors and to the timing of the withdrawal of charges as supporting the allegation that there is an air of reality to the allegation of prosecutorial misconduct. They submit that the Canadian charges were not pursued with due diligence once the Crown was aware of the pending extradition arrest.
[63] I see no basis on the record to suggest that the Canadian charges were not pursued with due diligence. I see nothing in the fact that there was communication between prosecutors that would support an allegation of misconduct.
[64] The evidence on this application does not support the conclusion that there is an air of reality to the allegation of abuse of process nor does it support the conclusion that the disclosure sought would be relevant to the allegations.
[65] The application for disclosure of communications between the provincial federal and U.S. prosecutors is denied.
Order
[66] In summary, I have concluded that the application should be allowed in part and I order disclosure of the following:
- The notes of the U.S. customs officials who detained and searched Mr. Ighedoise on August 21, 2014;
- The notes of the Peel police officers involved in Mr. Ighedoise’s arrest on August 21, 2014 and the seizure of his electronic devices;
- The ITO for the search warrants and production order dated October 8, 2014, December 16, 2014, February 20, 2015, May 14, 2015 and September 28, 2015;
M. Forestell J.
Released: June 5, 2017
Footnotes
[1] The Notice of Application refers to the production order but not by date. On my reading of the record, the only Canadian production order was dated May 14, 2015 and was for the Applicant Amadi’s telephone records.
[2] (1997) 1997 359 (SCC) , 115 C.C.C. (3d) 481 at 525
[3] (1994) 1994 498 (ON CA) , 94 C.C.C. (3d) 99 (Ont. C.A.)
[4] United States v. Anekwu, 2009 SCC 41
[5] (2004) 2004 36125 (ON CA) , 183 C.C.C. (3d) 149 at paras. 22-23 and cited with approval in Anekwu
[6] 2009 SCC 41
[7] U.S.A. v. Kwok, 2001 SCC 18 at para. 100
[8] 2002 45027 (ON CA) , [2002] O.J. No. 3219 (C.A.)
[9] 2009 O.J. No. 3091 (S.C.J.)
[10] R. v. Saikaley 2012 ONSC 6794 (appeal to the OCA dismissed without addressing this issue); R. v. Leask, 2008 ONCJ 25; R. v. Bares 2008 CarswellOnt 1265
[11] 2011 CarswellOnt 11191 (S.C.J.)
[12] 2014 SCC 77
[13] See R. v. Garcia-Machado, 2015 ONCA 569