R. v. Amadi, 2017 ONSC 4983

CITATION: R. v. Amadi, 2017 ONSC 4983

COURT FILE NO.: CR-16-EX-90000389

DATE: 20170704

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

IKECHUKWU AMADI

Applicant

Heather Graham, for the Crown

Philip Campbell, for the Accused

HEARD: June 29, 2017

B.A. ALLEN J.

REASONS FOR DECISION

(Application for Interim Release on Extradition)

BACKGROUND

[1]

Background

Ikechukwu Amadi brings this application seeking release pending a determination pursuant to 18(1)(b) of the Expedition Act, S.C. 1999, c. 18. This is his third application for extradition interim release. He faces several fraud-related and conspiracy charges which he is alleged to have committed in the U.S.

2Mr. Amadi is 35 years of age. He has no criminal record. He was born in Canada and thus is a Canadian citizen. He has spent a good portion of his life living in Nigeria. His parents and other family members live in Nigeria. He is engaged in several different business ventures with his family in Nigeria. He owns a home there near his parents’ home.

3Before the charges arose in the U.S., Mr. Amadi was also facing domestic charges. On October 7, 2015, the Toronto police executed search warrants on his home and seized a number of electronic devices. Information obtained from those devices led to Mr. Amadi’s arrest on October 7, 2015 for laundering proceeds of crime.

4Mr. Amadi was released on bail on October 20, 2015 on the domestic charges. His sureties were his wife, Chanda Lockhart-Amadi, and his friends, Imohini Ahonkhai and Shaheen Hemraj. He made a variation application on November 25, 2016 to, among other things, allow him to travel to Nigeria. The variation hearing was to be heard on December 14, 2016. However, on December 8, 2016, he was arrested pursuant to a U.S. extradition warrant. The variation application was abandoned. The domestic charges were eventually withdrawn on February 23, 2017.

5The U.S. charges involve a multi-million dollar fraud scheme involving amounts somewhere in the range from 8.8 to 15 million dollars. Mr. Amadi is charged along with a number of associates with conspiracy to commit international wire and mail fraud and conspiracy to launder money. The fraud involved setting up bank accounts for fraudulent funds and forging financial instruments, identification documents, passports and travel documents. Mr. Amadi is alleged to have used numerous aliases, phone numbers and email accounts. He faces a possible 15 to 20-year sentence in the U.S. if found guilty.

6Mr. Amadi’s first bail application on the extradition warrant was heard by Morgan, J. of this Court on December 15, 2016. By decision released on December 20, 2016, Morgan, J. denied release. Mr. Amadi’s second application was heard by Clark, J. of this Court on January 11, 2017 and, by decision dated January 13, 2017, release was denied. On both applications the Crown sought denial of release on the primary grounds.

7On May 5, 2017, Mr. Amadi brought an application before this Court for disclosure of evidence and information in the possession of the Crown related to communications between Canadian and U.S. authorities and for disclosure of notes from U.S. Customs officials and the Toronto police regarding the detention of Mr. Amadi and the warrantless search and seizure of his electronic devices. Mr. Amadi seeks to challenge the constitutionality of the searches and seizures of his electronic devices. Forestell, J. heard this application on June 5, 2017 and granted the application in part.

8Before this hearing, the Crown had provided some of the disclosure. Crown counsel advised during the hearing that the Crown’s office had delivered to Mr. Amadi’s lawyers the balance of the disclosure ordered by Forestell, J. The date of August 4, 2017 was scheduled to return before Forestell, J.

LAW ON JUDICIAL INTERIM RELEASE PENDING EXTRADITION

[9]

Law on Judicial Interim Release Pending Extradition

An extradition judge’s authority to remand on bail derives from s. 13 of the Extradition Act. The judicial interim release provisions set down in the Criminal Code under s. 515 and following are incorporated by that section. The onus is generally on the Crown on a balance of probabilities to establish why release is not justified.

10The onus shifts to the applicant, for instance, with certain types of offences such as those related to a criminal organization, where the applicant has breached conditions of release and where the applicant is seeking review of a previous denial of bail. The crimes that confront Mr. Amadi in the U.S. are arguably, pursuant to the definition under s. 515.6(a)(2), related to a criminal organization in that they involve three or more persons and have as one of their main activities the commission of one or more serious offences. Further, Mr. Amadi, in this application, is seeking review of Clark, J.’s decision. This is therefore a reverse onus case.

11Section 515(10) of the Criminal Code provides that bail may be denied in three situations commonly referred to as primary, secondary and tertiary grounds:

(a) where the detention is necessary to ensure the accused’s attendance in court;

(b) where the detention is necessary for the protection or safety of the public considering any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) where the detention is necessary in order to maintain confidence in the administration of justice.

12Where the accused can establish a material change in circumstances, an order can be varied on bail review. The other factors that can be considered on review are an error in law by the bail judge and where the decision is clearly inappropriate. Mr. Amadi asserts his application establishes a material change of circumstances from the situation that was before Clark, J. If the evidence meets this criterion then the reviewing judge may review the order “as if he or she were the initial decision maker”: [R. v. St. Cloud, 2015 SCC 27, at paras. 121 and 138, (S.C.C.)].

13The Crown seeks denial of bail on this application solely on primary grounds. I am mindful of the caution expressed by the British Columbia Court of Appeal, which case has been followed by this court in extradition bail cases. The Court observed that the extradition court “must look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings.” I must therefore place special emphasis on the strength of Mr. Amadi’s evidence tendered to assure he will not flee the jurisdiction.

THE TWO PREVIOUS BAIL REVIEW APPLICATIONS

[14]

The Two Previous Bail Review Applications

Mr. Amadi had two sureties on the application before Morgan, J., his wife Chanda Lockhart-Amadi and his friend Imohimi Ahonkhai. The plan of supervision involved Mr. Amadi residing with his wife, a curfew and a total pledge of $45,000 by his sureties. Ms. Lockhart-Amadi and Shaheena Hemraj offered to increase the total pledge to about $220,000. However, it was not clear to Morgan, J. where these funds were going to come from.

15By the time of the hearing before Morgan, J., Mr. Amadi and his wife had sold their home and began residing in rented accommodations. This raised the question, which remains before me, whether Mr. Amadi has strong enough roots in the community, with the sale of his home, to deter him from fleeing the jurisdiction. The net proceeds of sale were about $118,000, some of which Mr. Amadi and his wife invested with Mr. Ahonkhai and his wife in a restaurant business.

16In denying bail, Morgan, J. was concerned about Mr. Amadi’s weak roots in the community, as well as his insufficiently restrictive plan of supervision, the insufficiency of financial terms, the lack of documentary support for the proposed pledges and the seriousness of the U.S. charges. Morgan, J. found the international nature of the crimes, as well as the identity theft and passport forgery charges pointed to a substantial risk on the primary grounds.

17In the hearing before Clark, J., Mr. Amadi proposed the following as material changes in circumstances:

• an increase to five sureties;

• Mr. Amadi provided more substantial financial documentation;

• a proposed change in the residential surety to an additional person, his cousin Daniel Ahana, who is retired and will supervise Mr. Amadi on conditions amounting to house arrest;

• the other additional surety, David Shellnut, a long-time friend and a lawyer called to the bar in 2013, practising with a prominent Toronto law firm; who pledged $25,000 of the equity in his condo, a loss of which he stated would exact a financial toll on him in view of his sizeable law school debt;

• from the proceeds of sale of their home, Mr. Amadi and his wife paid a security deposit of $22,800 to secure a two-year lease on their rental apartment;

• the five sureties together were willing to pledge about $330,000;

• there was a proposal of full-time electronic monitoring.

18Clark, J. was concerned that Mr. Amadi lacked sufficient roots in the community, that is, a sufficiently permanent connection to Canada particularly in view of the sale of his home. Clark, J.’s view was that the amount of the investment in the lease is paltry when set against the seriousness of the crimes and the length of time he stands to serve if convicted in the U.S. He was concerned that the sale of the house suggests that he divested himself of property as part of a plan to flee the jurisdiction. There is evidence that Mr. Amadi knew of the U.S. charges pending against him when he did this.

19Clark, J. also pointed out that the proposal for an electronic monitoring ankle bracelet is insufficient as the application lacked evidential support for the implementation and enforcement of this monitoring method. Clark, J.’s view was that even were there sufficient evidentiary support for this method, electronic monitoring has only at best a deterrent effect. It would not prevent flight. For those reasons, Clark, J. found the proposal for ankle bracelet monitoring does not represent a material change in circumstances in the context of the flight risk in this case.

20Clark, J. denied bail on the primary grounds. He concluded that the purported changes in circumstances were not of such a magnitude, whether considered singularly or in the aggregate, that the order under review should be not stand: [U.S.A. v. Ruggeberg, [2005] B.C.J. 152 (B.C.S.C.), cited by Echlin, J., now deceased, in U.S.A. v. Thai, [2009] O.J. No. 285 (Ont. S.C.J.)].

THE BAIL REVIEW APPLICATION BEFORE THIS COURT

[21]

The Bail Review Application Before This Court

Mr. Amadi puts before the Court a plan he asserts presents a material change to the circumstances that were before Clark, J. The plan in Mr. Amadi’s view addresses the concerns raised by Clark, J. and Morgan, J.

22The changes Mr. Amadi proposes on this application relate to the following factors:

• a sizeable increase in the amount of surety pledges. The five sureties offer pledges in the total amount of $529,500: his wife, Ms. Lockhart-Amadi, pledging $101,500, and if required by the Court, an additional $69,000 (Cdn) invested in a property in Dallas, Texas; Ms. Hemraj, $134,000, her entire savings and assets; Mr. Ahonkhai $20,000 from equity in his home and his savings; Mr. Ahana, the total $199,000 equity in his home; and Mr. Shellnut, $75,000 from the equity in his condo.

• a electronic ankle bracelet. Mr. Amadi provided an undertaking, by way of an affidavit from the proprietor of a company that offers this service, to supply the bracelet and provide monitoring services; materials describing the nature of the service were also filed.

• Mr. Amadi will be on house arrest at the family home where he will be the primary caregiver to the children while his wife works at the restaurant; his wife and other sureties undertake to be in close communication with Mr. Amadi throughout the day and are willing to alert the police if he fails to respond to their calls or is found not to be at home.

CONCLUSION

[23]

Conclusion

I find Mr. Amadi has met his burden to establish a material change in circumstances.

24I find the increased monetary amount the five sureties are willing to pledge increases my confidence that Mr. Amadi will not pose a serious threat to flee the jurisdiction. The sureties are his family members and close friends who individually are willing to offer monetary security in amounts large enough that if lost to a breach would put them in dire financial straits. The sureties have stated they understand this risk and are willing to assist supervising Mr. Amadi and to call the police if Mr. Amadi is found in breach. I note that Mr. Shellnut does not reside near Mr. Amadi so his capacity to supervise will be limited.

25Ms. Lockhart-Amadi further offered to provide the added $69,000 from the investment in Dallas which, in my view, shows a willingness, as show of faith, to enlarge the financial risk to her family. This tends to demonstrate as an increased dedication on her part to ensure her husband remains in compliance with the terms of his release. I do not find it necessary for Ms. Lockhart-Amadi to pledge the Dallas investment given the sizeable total collective commitment.

26The total amount pledged, over a half-million, is substantially greater than that pledged before Clark, J. I am also satisfied that the documentation filed on this application in support of each surety’s pledge is sufficient to support their financial undertakings.

27On the question of Mr. Amadi’s roots in the community, I find that his connection to the community is sufficient. Mr. Amadi has pre-paid rent on a two-year lease in an amount in excess of $20,000. Supporting documentation was filed that evidences this. I find if he were planning to flee after the sale of his house, he would not have done this. He could have simply rented an apartment and paid month-to-month without monetary risk.

28I am encouraged in my finding of a sufficient community connection by the fact that in November 2016 while on bail on the domestic charges he sought a variation of bail in which he was requesting to leave Canada to visit his parents in Nigeria. Were his intention to flee the jurisdiction he would not have made known to the Crown and Court his desire to visit Nigeria.

29Although the application for variation was abandoned due to his arrest on the U.S. charges, it is evident that Mr. Amadi was seeking the Court’s permission to leave Canada. This combined with his sureties’ faith in him, backed by significant financial undertakings lessen my concern about flight risk. Mr. Amadi was born in Canada and has many friends and associates here. He has a wife and two children in Canada as well as an investment in a restaurant business that connect him to the community.

30While none of these factors alone sufficiently militate against him being a flight risk, I find that in combination they point away from a plan to flee the jurisdiction.

31I am mindful that the plan of supervision is somewhat less stringent than that before Clark, J. in that Mr. Amadi does not have the 24/7 close supervision he would have had living with Mr. Ahana. However, when I consider the increased financial undertakings of his sureties, including the pledge by his wife that directly impacts his immediate family, I find the risk of him breaching by leaving his home to flee is minimized.

32I looked at the fact he has spent a good portion of his life in Nigeria and has strong family and business ties there. He also has a home there. This situation can raise the suspicion of possible flight. However, when those circumstances are weighed against the factors that I find point away from Mr. Amadi being a flight risk, I am not as concerned as I might otherwise be about his connections to Nigeria. There is also the practical reality that it is usually not a thing of suspicion when people living abroad from their families’ home country keep close ties back home.

33I turn now to the ankle monitor. The application of an ankle monitor also adds to a decreased worry about Mr. Amadi fleeing the country. I take the point that ankle monitors do not prevent a breach. They at most have a deterrent effect. However, I find from the information filed that the monitoring service provided by Discovery Science Corporation will serve to augment the proposed supervision plan. The company undertakes that any breach of the monitored conditions will be detected and reported which will result in jeopardy to the accused’s release on bail.

34I also take into account that Mr. Amadi is a mature man of 35 years of age and does not have a criminal record. I also considered he was on bail on the domestic charges for over a year without being charged with a breach of his recognizance. This also provides some comfort that he will remain in compliance if released on the U.S. charges.

35In granting release I have not ignored the serious and disturbing allegations against him on fraud and conspiracy charges related to a multi-million dollar scheme involving many perpetrators and many victims. Mr. Amadi faces a possible sentence of 15 to 20 years. This is not taken lightly. The plan for release is not perfect. But I find that the terms of release can reasonably ensure that he will be available to face those charges if he is extradited to the U.S.

DISPOSITION

[36]

Disposition

I grant interim release on the following terms:

a) Mr. Amadi’s sureties shall be his wife, Chanda Lockhart-Amadi, Shaheena Hemraj, Imohimi Ahonkhai, Daniel Ahana and David Shellnut.

b) The sureties shall provide security for their pledge in the following amounts:

(i) Chanda Lockhart-Amadi ̶ $101,500

(ii) Shaheena Hemraj ̶ $134,00

(iii) Imohimi Ahonkhai ̶ $20,000

(iv) Daniel Ahana ̶ $199,000

(v) David Shellnut ̶ $75,000

c) Mr. Amadi shall reside with his wife in the family home at 94-5260 McFarren Boulevard, Mississauga, Ontario. He shall notify the Toronto Police Fugitive Squad at least seven days prior to any change of residential address.

d) Mr. Amadi shall not leave his residential address except when accompanied by one of his sureties and except in medical emergencies involving himself or his children.

e) Mr. Amadi shall remain within the Greater Toronto Area and Hamilton, Ontario.

f) Chanda Lockhart-Amadi shall supervise Mr. Amadi in the residence at times when she is not at work. She will obtain the support of Shaheena Hemraj, Imohimi Ahokhai, or Daniel Ahana when available to assist with supervision. One of Mr. Amadi’s sureties shall be in contact with Mr. Amadi on a daily basis during the time Ms. Lockhart-Amadi is outside the home.

g) Mr. Amadi shall allow the installation of an ankle monitor and sign any required agreements with Discovery Science Corporation and abide by any contractual terms. The bracelet shall be installed at the Detention Centre facility before his release.

h) Mr. Amadi shall not possess or apply for any passports or travel documents.

i) Mr. Amadi shall report forthwith upon release to the Toronto Police Fugitive Squad at 2440 Lawrence Avenue East, Toronto and thereafter on every Monday between the hours of 8 a.m. and 8 p.m.

j) Mr. Amadi shall not have access to the internet or any computer, phone, tablet or mobile device. The internet may only be accessed on a television for the purpose of entertainment.

k) Mr. Amadi shall abstain from communication with his co-accused, Akohomen Ighedoise, and all co-conspirators listed in the Record of the Case.

l) Mr. Amadi shall have his extradition hearing within six months of the date of his release.