Court File and Parties

COURT FILE NO.: EX 216/18329/13 DATE: 20190627 SUPERIOR COURT OF JUSTICE (TORONTO REGION)

IN THE MATTER OF an application pursuant to section 29 of the Extradition Act for an order committing TONY DADA AKINBOBOLA a.k.a. LAWRENCE D AWONIYI a.k.a. BOSS TONY a.k.a. TOYIN and HARRY COLE a.k.a. AKINTOMIDE AYOOLA BOLU a.k.a. JOHN KING a.k.a. BIG BRO a.k.a. EGBON into custody to await the Minister’s decision on whether he should be surrendered 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

• and -

TONY DADA AKINBOBOLA a.k.a. LAWRENCE D AWONIYI a.k.a. BOSS TONY a.k.a. TOYIN and HARRY COLE a.k.a. AKINTOMIDE AYOOLA BOLU a.k.a. JOHN KING a.k.a. BIG BRO a.k.a. EGBON Respondents

COUNSEL: Rebecca Sewell, for the Attorney General of Canada Nicholas Xynnis, for Harry Cole Jeff Marshman, for Tony Dada Akinbobola

HEARD: May 30, 2019

REASONS FOR DECISION

N. SPIES J.

Overview

[1] This is in the matter of the Attorney General of Canada on behalf of the United States of America (“USA”) and Tony Dada Akinbobola, a.k.a. Lawrence D. Awoniyi, a.k.a. Boss Tony, and a.k.a. Toyin (“Mr. Akinbobola”) and Harry Cole, a.k.a. Akintomide Ayoola Bolu, a.k.a. John King, a.k.a. Big Bro, a.k.a. Egbon (“Mr. Cole”).

[2] The Minister of Justice issued an Authority to Proceed (“ATP”) pursuant to s. 15 of the Extradition Act, SC 1999, c. 18, (“Act”), on December 21, 2018, which authorizes the Attorney General of Canada to seek an order for Messrs. Akinbobola’s and Cole’s committal for extradition for prosecution in the USA.

[3] The ATP lists the Canadian offence, which corresponds to the alleged conduct, as fraud, contrary to s. 380 of the Criminal Code. Messrs. Akinbobola and Cole are alleged to have been involved in a fraudulent lottery scheme that targeted elderly victims by making false representations that they had won a sweepstakes or lottery. The scheme resulted in victims sending thousands of dollars to facilitate collecting their prize. None of the victims received any money.

[4] Subsection 24(1) of the Act requires the Court to hold an extradition hearing upon receipt of an ATP. Subsection 29(1)(a) of the Act provides that this Court shall order the committal of Messrs. Akinbobola and Cole into custody to await surrender if, “there is evidence admissible under this Act of conduct that had it occurred in Canada would justify committal for trial in Canada on the offence set out in the Authority to Proceed and the judge is satisfied [on a balance of probabilities] that the person [before the court] is the person sought by the extradition partner.”

[5] The Attorney General of Canada’s position is that the test for committal is satisfied for the offence set out in the ATP. For the reasons that follow I have decided to grant this application in part and make an order for the committal of Harry Cole pursuant to s.29 of the Act to await surrender for the prosecution of the offence set out in the ATP. As for Mr. Akinbobola, I have decided to dismiss the application without prejudice to the Attorney General of Canada renewing the application should additional evidence be forthcoming from the USA.

Issues

[6] Messrs. Akinbobola and Cole took no issue with this Court’s jurisdiction or the procedure that has led to this hearing. They both admitted that the conduct alleged, if proven, would constitute the offence of fraud, contrary to 380 of the Criminal Code. They also both admitted that they were the persons sought by the USA and Mr. Akinbobola also admits that he is the person identified as Tony Dada Akinbobola, a.k.a. Lawrence D. Awoniyi, a.k.a. Boss Tony, and a.k.a. Toyin in the Record of the Case. It is his position however that there is no evidence in the ROC that he has actually committed an offence. Mr. Cole disputes that he is the person sought by the USA and also asserts that the evidence relied upon is insufficient.

The Evidence

[7] The USA provided a Record of the Case (“ROC”) dated November 13, 2018 and a Supplemental ROC (“SROC”) dated December 21, 2018, which were both certified by Michael Galdo, Assistant District Attorney for the Western District of Texas pursuant to s. 33 of the Act. Pursuant to ss. 32(1)(a) of the Act, the ROC was admitted as evidence on the hearing. In compliance with ss. 33(1)(a) of the Act, the ROC and SROC summarize the evidence available to the USA for use in the prosecution of Messrs. Akinbobola and Cole. The certification confirms that the summarized evidence is available and sufficient under the laws of the USA to justify prosecution.

[8] According to the allegations, the fraudulent scheme worked as follows: conspirators would send a letter falsely telling the victim that he or she had won millions of dollars through a sweepstakes or lottery. The letter included a fraudulent cheque for approximately $8,000. The victim would be instructed to deposit the cheque into his or her personal bank account, and make an immediate withdrawal of thousands of dollars in cash or money orders, to send to a “sweepstakes representative” in the USA to facilitate the collection of their alleged prize. By the time the victim would be notified by their bank that the deposited cheque was fraudulent, the cash or money order sent by the victim would have already been received by the conspirators.

[9] Mr. Cole is alleged to have had a leadership role in this fraudulent scheme, based on a relationship he had with a contact in the USA. This contact is alleged to have had access to large amounts of telemarketing data, which targeted the most vulnerable potential victims. It is alleged that Mr. Cole had control over the actions of the other participants, and that he was the individual who was sending packages of hundreds of sweepstakes scam envelopes (“mailers”), digitally altering and printing cheques, and also delegating this work to participants.

[10] Mr. Akinbobola is alleged to have worked as a “closer” for Mr. Cole, and also to have prepared sweepstakes mailers and received fraudulent funds. Victims were provided with contact phone numbers of “closers”, who would answer their calls and help convince them to deposit the fraudulent cheques and mail the cash or money orders to secure their prize.

[11] The ROC and SROC contain summaries of the anticipated testimony of a coconspirator who has pled guilty and been sentenced in the USA, as well as three confidential witnesses, and the anticipated evidence of an investigator from the Internal Revenue Service (“IRS”) Criminal Investigation Division.

Special Agent James L. Neff (“SA Neff”)

[12] SA Neff has been a Special Agent with the IRS Criminal Investigation Division since April of 1988, and is expected to testify at trial in this case. He is expected to explain how the sweepstakes scheme worked, that none of the victims ever received the fraudulently promised winnings, and that many suffered an actual loss as a result of cashing the fraudulent cheques.

[13] SA Neff will also testify about a search conducted on December 17, 2015 at the home of Stephen Omowaiye, a witness who was involved in the scheme. Law enforcement uncovered ledgers with references to Messrs. Cole and Akinbobola, equipment used to procure Sweepstakes mailers and fraudulent cheques, and printed fraudulent cheques. It is also expected that SA Neff will testify to “emails analyzed, the bank records reviewed, and phone communications reviewed”.

Accomplice testimony - Stephen Omowaiye

[14] Mr. Omowaiye was prosecuted and sentenced in the Western District of Texas for his involvement in this Sweepstakes scam. He is currently in custody in the USA and is expected to testify in the proceedings against Messrs. Cole and Akinbobola.

[15] Mr. Omowaiye is expected to testify that he was introduced to Mr. Cole in 2014, and later began receiving packages of hundreds of sweepstakes mailers from Mr. Cole containing sweepstakes scam letters and fraudulent cheques. Mr. Cole communicated to Mr. Omowaiye that he (Cole) would take stolen legitimate cheques and digitally alter and print them to place in the sweepstakes mailers.

[16] Mr. Cole eventually hired Mr. Omowaiye to produce the sweepstakes mailers himself, and provided him with a list of addresses for hundreds of elderly victims, as well as copies of the scam letters, fraudulent cheques, and contact information for the “closers”. Mr. Omowaiye was told by Mr. Cole that he (Cole) hired “closers” to speak to victims and help convince them to deposit the fraudulent cheque and mail the cash or money orders.

[17] Mr. Omowaiye became one of the main record keepers for Mr. Cole, tracking who was owed money from the victim proceeds. He will testify that he deposited victim funds into bank accounts and wired victim funds, following instructions from Mr. Cole and another participant. Because of his role as a record keeper, Mr. Omowaiye will testify that he knows Mr. Akinbobola was paid with victim proceeds for his knowing participation in the sweepstakes scam. Mr. Omowaiye is expected to testify that he was given instructions by Mr. Cole to wire victim proceeds to bank accounts controlled by Mr. Akinbobola, specifically an account in the name of TTR African Food Plus (“TTR Account”), on multiple occasions. In addition Mr. Omowaiye will testify that Mr. Akinbobola worked as a closer, prepared sweepstakes mailers, and received fraudulent funds from the scheme.

[18] Mr. Omowaiye met Messrs. Cole and Akinbobola in person and he identified Mr. Cole as the individual in the photograph at Exhibit 1, and Mr. Akinbobola as the individual in the photograph at Exhibit 3.

[19] Mr. Omowaiye is expected to confirm from first-hand knowledge that the email account art.travel70@gmail.com was one of Mr. Cole’s accounts. He is also expected to testify to the contents of text messages that were found on his phone and identify the messages sent or received by Messrs. Cole and Akinbobola in which details of the fraudulent scheme were discussed.

Confidential Witness 1 (“CW1”) and Confidential Witness 2 (“CW2”)

[20] CW1 and CW2 are expected to testify that they joined the sweepstakes scheme in 2013 and worked as “closers”. Both witnesses have identified Mr. Cole as the individual in the photograph at Exhibit 1 of the ROC, and as the individual in charge of the sweepstakes scheme. They are expected to testify that Mr. Cole gave them a box of pre-addressed sweepstakes envelopes and directed them to mail it to someone in the USA who would then mail the hundreds of letters out to potential victims.

[21] CW1 and CW2 are also expected to testify that later in 2014, Mr. Cole provided them with the necessary equipment to print the pre-addressed envelopes, sweepstakes letters, and fraudulent cheques themselves, and that they produced sweepstakes mailers for Mr. Cole.

[22] CW1 and CW2 are also expected to testify that Mr. Cole provided them with multiple cellular telephones to use in their role as “closers”. They received approximately $1,000 per victim they “closed”, and received these funds via money orders mailed to them from conspirators in the USA, and by hand from Mr. Cole in Canada. In total, they received in excess of $100,000 in fraud proceeds during their time participating in the scheme.

[23] CW2 is expected to testify that he met with Mr. Cole on one occasion when Mr. Akinbobola was present, and he has identified the individual in the photograph at Exhibit 3 of the ROC as Mr. Akinbobola.

Victim Testimony

[24] Multiple sweepstakes victims will testify that they received the sweepstakes scam letter and fraudulent cheques, deposited the cheque, withdrew the cash, and mailed the cash. None of the victims ever received the fraudulently promised millions of dollars in winnings, and many suffered an actual loss as a result of cashing the fraudulent cheques.

Documentary Evidence

[25] SA Neff asserts that documentary evidence gathered in the USA that is expected to be introduced at trial, further demonstrates the involvement of Messrs. Cole and Akinbobola in the lottery scheme.

[26] The ROC states that Bank of America records from 2015 provide examples of fraudulent funds being sent or received. I will come to the evidence set out that alleges a connection to Mr. Akinbobola. The ROC also alleges that a Toronto-Dominion bank account in the name of TTR African Food Plus (“TTR”) received money orders of fraudulent funds and that Mr. Akinbobola controls this account.

[27] SA Neff also states that the contents of numerous email accounts acquired via a lawfully executed search warrant will be introduced at trial in the USA, along with the contents of Mr. Omowaiye’s emails via his testimony. The ROC states that these records, along with Mr. Omowaiye’s testimony, demonstrate that Mr. Cole utilized the email art.travel70@gmail.com to facilitate the fraud and that the email account records further demonstrate that Mr. Akinbobola utilized the email address goodman5400@mail.com, and that this email account received emails from Mr. Cole containing information used in the fraudulent scheme. The ROC also alleges that the IP address associated with goodman5400@mail.com was utilized to track packages containing sweepstakes victim proceeds on three occasions.

[28] Finally, SA Neff states that records from Mr. Omowaiye’s cellular phone are expected to be entered into evidence and authenticated by Mr. Omowaiye. These records contain multiple text messages between Mr. Omowaiye and Mr. Cole regarding details of the sweepstakes scam, including deposits, contact information for others involved in the scam, and bank account information. These records are also alleged to contain multiple text messages between Messrs. Omowaiye and Akinbobola with details of contact and bank account information, victim funds, and address information for closers.

The Identification Evidence

[29] Messrs. Cole and Akinbobola have been identified by Mr. Omowaiye, who met them both in person, as the individuals in the photographs attached to the ROC as Exhibits 1 and 3. Mr. Cole has also been identified by CW1 and CW2 as the individual in the photograph at Exhibit 1 of the ROC. Mr. Akinbobola was also identified by CW2 as the individual in the photograph at Exhibit 3 of the ROC.

The Test

[30] The Supreme Court of Canada recently explained the role of the jurisdiction of the extradition judge in M.M. v United States of America, 2015 SCC 62 at para. 36, as follows:

[T]he committal phase of the extradition process serves an important, but circumscribed and limited screening function. The role of the extradition judge is simply to decide whether he or she is satisfied that the person before the court is the person sought and whether “there is evidence admissible under [the Act and available for trial] of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed. [Citations omitted; emphasis in original]

[31] Once the Minister issues the ATP, the extradition judge’s sole responsibility is to hold a hearing to determine whether the evidence would support a committal on the Canadian offences described in the ATP. The judge’s role is confined to matters related to that task. As noted by Cromwell J. in M.M., the language of section 29(1)(a) of the Act incorporates the test for committal to trial applied by a justice at a preliminary inquiry. The incorporation of this test serves the efficiency of the extradition process and ensures that there is at least a prima facie case of a Canadian crime against the person sought.

[32] In M.M., the Supreme Court re-affirmed that, despite the modification to the assessment of the evidence occasioned by U.S.A. v. Ferras, 2006 SCC 33, which gives the judge the discretion to refuse committal in those cases where the reliability of the evidence has been successfully impeached, the judge’s role in assessing the evidence remains nonetheless a restrained one. Cromwell J. agreed with the interpretation of Ferras given by Doherty J.A. writing for the court in United States of America v. Anderson, 2007 ONCA 4, leave to appeal to the SCC refused, [2007] 220 C.C.C. (3d) vi., explaining that Ferras does not:

• envision weighing competing inferences that may arise from the evidence, other than in the limited sense noted in R. v. Arcuri, 2001 SCC 54, of considering that the inferences sought to be drawn from circumstantial evidence are reasonable;
• contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable beyond determining that the evidence is not “so defective” or “so unreliable” that it should not be given any weight; or
• call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial (at paras. 71, 72).

[33] To describe the high threshold of unreliability that must attach to evidence before it can be removed from consideration by the extradition judge in the test for sufficiency, Cromwell J. adopted (at para. 72) the following words of Doherty J.A in Anderson:

…it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the s. 29(1)(a) inquiry.

[34] As such, as long as there is some direct evidence of the essential elements of the Canadian offence specified in the ATP, or some circumstantial evidence from which a trier of fact could reasonably draw an inference of guilt, the extradition judge must commit. Moreover, “where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered,” see Arcuri at paras. 29,30.

[35] Where the evidence is circumstantial in nature, committal will be warranted where the inferences required are within the field of inferences available on the whole of the evidence. Conclusions should be based on consideration of the evidence in its entirety and not by subjecting every separate item of circumstantial evidence to scrutiny as to guilt, see R. v. Medina, 2010 ONCA 261.

Law Re Proof of Identity

[36] In United States of America v. Asielgbu, 2008 BCSC 1700, at para. 21 the British Columbia Court of Appeal explained that there are two parts to the identification issue under s. 29 of the Act, each with a differing burden of proof:

On a plain reading of s. 29 of the Extradition Act, there are two issues of identification in an extradition proceeding: one, is the person named in the ROC the person who committed the alleged conduct; two, is the person named in the ROC the person before the court? As noted, the extradition judge expressed these issues at para. 3 as follows:

…There [are] two aspects of the identify issue. They are:

1. that there be prima facie evidence that the person sought is the person who committed the acts alleged; and
2. that there be evidence proving on the balance of probabilities that the person before the court is the person sought by the requesting state.

…The lower threshold of a prima facie case derives from the fact the requesting state must establish a case on which a jury reasonably instructed might convict”. [Emphasis added]

[37] Thus the requesting state must present evidence of a prima facie case identifying the person sought as the individual believed to have committed the criminal conduct on which committal is sought. The second part of the s. 29(1)(a) test obliges the requesting state to satisfy the extradition judge that the person before the Court is the person sought by the foreign state. The Ontario Court of Appeal concluded in Republic of the Philippines v. Pacificador, [1993] OJ No. 1753 at para. 8, that this part of the identification analysis must be proven on a balance of probabilities.

[38] Identity may be proven through a variety of means, as addressed in s. 37 of the Act:

37. The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request:

(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and (b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.

[39] As well, it is long established practice for an extradition hearing judge to compare the photograph of the person sought contained in the evidence with the person before the court to determine that identity has been established, as permitted in United States of America v. Wong (1995), 98 C.C.C. (3d) 332 (B.C.C.A.), leave to appeal to S.C.C. refused at 101 C.C.C. (3d) vi.

Analysis

Akinbobola

[40] As already stated Mr. Akinbobola admits that that there is prima facie evidence that he is the person sought by the USA and that the person sought is the person who is alleged to have committed the fraudulent acts alleged. It is his position however, that the evidence in the ROC that purports to connect him to the alleged fraud is either manifestly unreliable and/or it lacks sufficient particulars to provide even some evidence that he is the one actually involved in the alleged fraud.

[41] Mr. Marshman referred me to United States of America v. Yang, 56 O.R. (ed) 52, where at para. 63 Rosenberg J.A., speaking for the court, stated that:

[i]f the material presented in the record of the case is so bereft of detail, such as the witness’ means of knowledge, that the judge cannot determine its sufficiency, the judge will have to discharge the person sought for prosecution. This is not a question of the judge weighing the evidence or passing on its reliability, but of carrying out the function assigned by statue. [Emphasis added]

[42] This passage from Yang was expressly approved of by the Supreme Court of Canada in M.M. at para. 51. Accordingly to decide whether or not the ROC meets this standard I need to decide whether or not I can draw inferences to fill in any evidentiary gaps or whether to do so would amount to speculation. As an example of such a case, Mr. Marshman referred to United States of America v. Huynh, [2005] O.J. No. 4074 (Ont. C.A.) where at para. 7, the court noted that the “process of drawing inferences from evidence is not … the same as speculating even where the circumstances permit an educated guess”. Mr. Marshman also referred to R. v. Munoz, 86 O.R. (3d) 134 where Ducharme J. at paras. 21-31 discussed the drawing of inferences.

[43] Mr. Marshman places heavy reliance on United States of America v. Viscomi, 2015 ONCA 484, 126 O.R. (3d) 427 (Ont. C.A.) in support of his position. In that case the USA sought Mr. Viscomi’s extradition to stand trial for child luring on the Internet. What was described as the “lynch-pin issue” was whether or not Mr. Viscomi was the “someone” who was on the other end of the video call with the child (at para. 5). The Court of Appeal found that the evidence in the ROC could reasonably lead to a finding that Mr. Viscomi was the subscriber to the IP address at the time the crime was committed utilizing that IP address but that the ROC failed to explain what an IP address is, if multiple users located at the same address could use it or if users at another address via a shared access point could access it. There was no evidence if there were other computers or users at Mr. Viscomi’s address and that given the gaps in the evidence in the ROC one could not reasonably draw the inference from the fact that Mr. Viscomi was the subscriber of the IP address that he was the user at the relevant time. That was only one possible conclusion and the gap in the court’s view could only be bridged by evidence. On that basis the committal order was quashed.

[44] In reliance on these authorities Mr. Marshman submitted that if the primary facts in evidence do not permit the drawing of any inferences, there is a gap in the evidence that cannot be filled with speculation. Similarly, where there is a gap in the primary facts that permits of more than one inference, that is not sufficient. This was the problem in Huynh, supra where the court found that one possible inference was that the cash involved was proceeds of drug trafficking but that the requesting state has not offered any evidence as to the source of the funds even though one of the parties to the conspiracy was cooperating with the police and so that was not the only inference. As I have already reviewed, the same issue arose in Viscomi.

[45] The position of Mr. Akinbobola is that there is no evidence to suggest that he is the person who committed the acts alleged in the ROC; namely worked as a “closer” for Mr. Cole, prepared sweepstakes mailers or received fraudulent funds and in any event there is no witness who could testify that he engaged in any activity in the fraudulent scheme. In particular he asserts that all of the evidence the USA relies on against him comes from emails and texts but apart from bald assertions there is no evidence that he is actually connected to any phone number or email or even to any bank account.

[46] To consider this submission I must go back to review the specific allegations against Mr. Akinbobola. The evidence in the ROC where his name is mentioned is set out in italics, followed by my concerns, as follows:

(a) At Mr. Omowaiye’s home, law enforcement uncovered ledgers with references to Messrs. Cole and Akinbobola, equipment used to procure sweepstakes mailers and fraudulent cheques, and printed fraudulent cheques, ROC, para. 6. This is simply a bald statement that Mr. Akinbobola’s name was in ledgers. There is no explanation of what the ledgers are, what if anything is stated in the ledgers apart from Mr. Akinbobola’s name or how these ledgers are allegedly connected to the fraudulent sweepstakes scheme or in fact to Mr. Akinbobola. (b) Mr. Omowaiye was told by Mr. Cole that he (Cole) hired “closers” to speak to victims and help convince them to deposit the fraudulent cheque and mail the cash or money orders. (ROC, para. 12) Mr. Omowaiye will testify that Mr. Akinbobola worked as a closer, prepared sweepstakes mailers, and received fraudulent funds from the scheme, ROC para. 17. Again this statement that Mr. Akinbobola worked as a closer is a bald statement. There is no information as to how Mr. Omowaiye can make this assertion. He does not say that Mr. Cole told him that Mr. Akinbobola worked as a closer (which would be double hearsay in any event) and there is no information as to how Mr. Omowaiye knows the balance of the statement. (c) Mr. Omowaiye was given instructions by Mr. Cole to wire victim proceeds to bank accounts controlled by Mr. Akinbobola, specifically an account in the name of TTR African Food Plus, on multiple occasions, ROC, para. 15. There is no information as to how Mr. Omowaiye knows that the TTR Account was in the name of Mr. Akinbobola or controlled by him. As Mr. Marshman submits that there must be bank records available but that the ROC is bereft of any detail as to why it is alleged that the TTR Account is owned or controlled by Mr. Akinbobola. (d) Mr. Omowaiye will testify that he became one of the main record keepers for Mr. Cole, tracking who was owed what money from all of the victim proceeds that Mr. Omowaiye was receiving in Austin Texas. Mr. Omowaiye will testify that because of his role as record keeper, he knows Mr. Akinbobola was paid money for his knowing participation in the Sweepstakes scam. ROC, para. 17. Although this statement is some evidence that Mr. Omowaiye received victim proceeds, there is no information as to how Mr. Omowaiye “knows” that any victim proceeds went to Mr. Akinbobola save for the statement already referred to at para. 15 of the ROC and so this statement depends on whether or not there is evidence to support the statement in para. 15. (e) Mr. Omowaiye met Messrs. Cole and Akinbobola in person and identified them from the photographs attached to the ROC. Mr. Omowaiye identified Mr. Akinbobola as the individual in the photograph at Exhibit 3, ROC, para. 22. The identity of Mr. Akinbobola is not disputed and there is no information in this paragraph that anything to do with the Sweepstakes scam was discussed. (f) Mr. Omowaiye is expected testify to the contents of text messages “discussed below” that were found on his phone and will identify the messages sent or received by Messrs. Cole and Akinbobola, ROC, para. 24. Copies of these text messages have not been included in the ROC. In this paragraph no information is provided as to how Mr. Omowaiye “knows” the text messages in question were sent or received from Mr. Akinbobola. As Mr. Marshman submitted that there is no evidence anywhere in the ROC to support the proposition that these text messages in fact came from or were sent to Mr. Akinbobola. (g) CW2 will testify that he met with Mr. Cole on one occasion when Mr. Akinbobola was present, and has identified the individual in the photograph at Exhibit 3 of the ROC as Mr. Akinbobola. There is no evidence from CW2 linking Mr. Akinbobola to any fraudulent conduct and as already stated the identity of Mr. Akinbobola is not disputed. As Mr. Marshman submitted since CW1 and CW2 were operating in Ontario is it strange that if Mr. Akinbobola was involved in this alleged fraud that they would not have some evidence of that. (h) Documentary evidence, namely Bank Account Records, gathered in the U.S. are expected to be introduced at the trial. ROC p. 7. In a footnote at p. 8 it is stated that SA Neff is expected to testify that multiple bank accounts were used to receive and send proceeds from the frauds perpetrated by this conspiracy. Examples are set out at para. 45 and in footnote 4 it is stated that Mr. Omowaiye will testify that all of these fund transfers were of fraudulent proceeds and that he knows this from firsthand experience because they were received from victims sent to addresses under Mr. Omowaiye’s control. Mr. Omowaiye received the funds and then sent them under instructions from coconspirators. This statement is further evidence that Mr. Omowaiye received victim proceeds but it does not specify what bank accounts are referred to nor is there any connection stated here to Mr. Akinbobola. (i) The examples of transfers relevant to Mr. Akinbobola are that the ROC states that two wire transfers for $9,400 and $5,400 were sent from Mr. Omowaiye to Mr. Akinbobola’s Toronto-Dominion (“TD”) bank account in the name of TTR. Copies of the records obtained by SA Neff from the TD bank are not included in the ROC and as already stated there is no evidence as to how Mr. Omowaiye knows that the TTR Account belonged to Mr. Akinbobola or was controlled by him or any other evidence linking that account to Mr. Akinbobola. (j) Money order records, which Mr. Omowaiye will testify were all of fraudulent funds include four Western Union money orders purchased in Austin TX, on October 13, 2015 (“October 2015 wire transfer”) and mailed by Mr. Omowaiye to “Tony Akinbobola” in Ontario, Canada. It is stated that all of these money orders were later deposited into Akinbobola’s TTR African Food Plus bank account. ROC at para. 45. There is no evidence as to how Mr. Omowaiye knows that the “Tony Akinbobola” he mailed these money orders to is the Mr. Akinbobola sought by the USA. Furthermore, as already stated there is no evidence that the TTR account, which I presume is the TD account already referred to, belonged to Mr. Akinbobola or was controlled by him or any other evidence linking that account to Mr. Akinbobola. (k) The contents of numerous email accounts acquired via a lawfully executed search warrant will be introduced at trial in the USA, along with the contents of Mr. Omowaiye’s emails via his testimony. ROC para. 47. These records, along with Mr. Omowaiye’s testimony, demonstrate that Mr. Cole utilized the email art.travel70@gmail.com, ROC, para. 47 a. and that Mr. Akinbobola utilized email address goodman5400@mail.com. That email account was accessed by an IP address in Canada, according to records provided by the email service provider, ROC para. 47 c. Mr. Marshman submitted that the subscriber records were likely provided to SA Neff but no information has been provided in the ROC as to what evidence is relied upon to link Mr. Akinbobola to this email address. Furthermore, he submits that even if there was a link to Mr. Akinbobola as the subscriber that would not be evidence that he was the person who was using this email address to send and receive emails. (l) Mr. Omowaiye is expected to testify that he sent an email to goodman5400@mailcom with a picture of a completed wire transfer to TTR (the October 2015 wire transfer referred to at para. 45 f) and that a review of this email account corroborates Mr. Omowaiye’s testimony. I presume this means that the records for the goodman5400@mail.com account contain this email but as already stated this begs the question of what evidence there is linking this account to Mr. Akinbobola. (m) Email account goodman5400@mail.com received emails from Mr. Cole via art.travel70@gmail.com on multiple occasions. Several of those emails which included an attachment labeled “Tony” and each attachment contained a list of hundreds of elderly USA citizens with addresses and phone numbers. ROC para. 47 c. i. I have already set out the problems with the assertion that the email address goodman5400@mail.com was being used by Mr. Akinbobola. Although his first name is Tony, that is a very common name and the fact that the attachments are labeled “Tony” does not provide any reliable evidence that there is such a connection. (n) USA Postal Service records captured the IP addresses of devices that were tracking packages containing Sweepstakes victim proceeds sent by victims on at least three occasions and this evidence will be introduced at trial. The three victims involved confirmed to USA Postal employees that they sent money in response to a sweepstakes scheme, and are expected to testify at trial. The IP address that was used to track these packages was associated with goodman5400@mail.com. ROC para. 49. Agents seized a number of packages from the same sender to the same address of the same size and weight that all contained sweepstakes mailers. This assertion raises the same issues I have already identified with the alleged email account of Mr. Akinbobola. (o) Records from Mr. Omowaiye’s cellular phone contain multiple messages and Mr. Omowaiye is expected to testify and authenticate these text messages recovered from his phone, ROC para. 51. Messages stated to be sent to, from or about Mr. Akinbobola using mobile phone number 6477072091, are included, which Mr. Omowaiye will testify was the number used by Mr. Akinbobola, ROC, para. 52c. There is no evidence to explain how Mr. Omowaiye knows this is the telephone number for Mr. Akinbobola set out in the ROC or that the person he received text messages from was in fact Mr. Akinbobola. There is no explanation for the source of his knowledge or any information that permits me to assess the reliability of his bald statement that this was Mr. Akinbobola’s phone number. Furthermore, there is no evidence that Mr. Akinbobola was in fact the user of the phone associated to this number as opposed to perhaps the subscriber. (p) The examples set out in the ROC at para. 53 c. state that the text messages from Mr. Akinbobola include the address in Mississauga of Mr. Akinbobola, the name of what is stated to be Mr. Akinbobola’s business, TTR, a text from another coconspirator to Mr. Omowaiye referring a package “for Toyin,” which is stated to be a nickname for Mr. Akinbobola, “containing victim funds that belonged to Akinbobola”; that Mr. Akinbobola sent a text message to Mr. Omowaiye containing his full name [which is not specified] and his Nigerian bank account, and that Mr. Omowaiye sent a text message to Mr. Akinbobola giving him the name and address of the person he was to pass on to the closers so they could tell victims where to send the funds. I have already set out my concerns about what is missing in connection with the assertion that this was Mr. Akinbobola’s phone number and the assertion that he controlled the TTR account. The relevance of this Nigerian bank account is not explained, nor is there any information on how Mr. Omowaiye knows it is connected to Mr. Akinbobola. I also note that the ROC states Mr. Akinbobola’s address is in Toronto, not Mississauga.

[47] In summary, it is Mr. Marshman’s position that all of the evidence relied upon that actually incriminates Mr. Akinbobola comes from references to what is supposedly his email address, his phone number and the TTR Account. In each case there is no supporting evidence that would permit me to find that there is some evidence that Mr. Akinbobola is actually the one who is using this phone number, sending and receiving these texts, that the email is one that he is using, that he is the one sending and receiving these emails and that he is the one connected to the TTR Account.

[48] Ms. Sewell submitted that individually the pieces of evidence in the ROC may not add up to much but that I must consider the whole of the ROC. I agree that I must consider all of the evidence relied upon by the USA in support of its request to extradite Mr. Akinbobola. However, I must not be put in a position of simply rubber stamping the request. I have reviewed every single piece of evidence in the ROC that purports to incriminate Mr. Akinbobola. In every case I am faced with bald assertions without the source of the information, contrary to the principles I have set out from Yang. In addition, the problem that arose in Viscomi arises in the case at bar. Even if I could conclude that the email address and phone number alleged to be connected to Mr. Akinbobola are in fact ones that he subscribes to, there is still no evidence that he is in fact the user; i.e. the person actually using the phone and the email account.

[49] Ms. Sewell also submitted that the fact a TD account is listed that there must be one associated with Mr. Akinbobola and that I can draw a reasonable inference that the records are available and will be produced at trial. That submission is not in accordance with the direction from our Court of Appeal. I cannot rely on bald assertions and I must be put in a position to assess the sufficiency of the evidence. Even looking at all the evidence in the ROC with respect to Mr. Akinbobola, the sum of a series of “nothings” still equals nothing that I can rely upon to make the order requested.

[50] For these reasons I have concluded that the application in connection with Mr. Akinbobola, based on the ROC before me, must be dismissed without prejudice to the Attorney General of Canada renewing the application should the USA provide further evidence in a further supplementary ROC.

Cole

[51] Mr. Cole’s first position is that there must be prima facie evidence that he is the person sought by the USA. In particular he asserts that he is not the person in Exhibit 1 that Mr. Omowaiye identified as Harry Cole.

[52] In this case, I have first of all the fact that Mr. Cole’s name is the name in the documents submitted by the USA, although I do not have a middle name if there is one. Although it is alleged in the opening statements of the ROC that Harry Cole has a number of aliases, the ROC only sets these out once and then defines all of those names and aliases as simply “Cole”. This means that I do not know which witness referred to him by one or more of the aliases. That leaves me only with the name “Harry Cole” which is hardly unique.

[53] I have however, the evidence of Mr. Omowaiye who will testify that he was introduced in person to Mr. Cole, and he has identified Mr. Cole as the individual in Exhibit 1 that he met with.

[54] In addition, I asked Mr. Cole to step forward so that I could look at him and study his face and I looked at the original of Exhibit 1 and compared it to the person in court before me. Although Mr. Cole now has a beard and I would say his face is a little fatter, certainly the person before me looks similar to the photograph in the ROC marked as Exhibit 1, which is alleged to be him.

[55] For these reasons I am satisfied on a balance of probabilities that the Harry Cole before me is the person sought by the USA.

[56] Mr. Xynnis also argued that the evidence in the ROC with respect to Mr. Cole is manifestly unreliable because of two significant problems. First he submitted that there is no evidence in the ROC as to what benefit Mr. Omowaiye received for his cooperation with police. Mr. Xynnis submitted that the only inference is that since this information was not revealed in the ROC it must be significant and that it goes to undermining the expected evidence of Mr. Omowaiye. In effect he wants this Court to draw an adverse inference and find that the expected evidence of Mr. Omowaiye is manifestly unreliable.

[57] It is the case that there is no information in the ROC as to what if any consideration Mr. Omowaiye received in exchange for pleading guilty and cooperating with the investigators but at this stage my role in assessing the credibility and reliability of his evidence is limited. The law is clear that at this stage, I could not conclude that his evidence is so defective or manifestly unreliable that it would be dangerously unsafe to convict; see Yang, supra at para. 20. As I concluded in R. v. Chomica, at p. 13, notwithstanding arguments about the reliability of the evidence of a coconspirator, it is not the kind of evidence that on its face is so defective or manifestly unreliable that it would be dangerously unsafe to convict. Apart from the fact that Mr. Omowaiye is cooperating with the investigation there is nothing else that would suggest that his evidence is inherently unreliable or dangerous. This is an issue that must be explored at trial.

[58] Secondly Mr. Cole asserts that CW1 and CW2 are confidential informants and that the reliability of their evidence has to be tested against the Debot factors. However, the ROC states that these people are confidential witnesses as opposed to confidential informants, and that their names are being kept confidential for their safety and the integrity of the investigation. Significantly the ROC states that the identity of these witnesses will be provided to the defendants at trial. At this stage, as already stated, my role is not to decide whether or not a witness is credible beyond determining whether the evidence of these confidential witnesses is so defective or unreliable that it should not be given any weight. In my view the evidence of these confidential witnesses can be considered on this hearing and Mr. Cole will be able to assess their credibility and the reliability of their evidence at trial.

[59] Although there are similar problems in the ROC to those I have identified with Mr. Akinbobola, there is a great deal of evidence that the USA has obtained that suggests that Mr. Cole participated in this fraud and indeed had a leadership role. This includes, for example, inculpatory statements amounting to admissions of fraud that Mr. Omowaiye alleges Mr. Cole made to him when they were introduced to each other as set out in paras. 11 and 12 of the ROC.

[60] Accordingly for these reasons I am satisfied in all of the circumstances that 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, and that the test for committal set out in ss. 29(1)(a) has been met with respect to Mr. Cole.

Disposition

[61] Accordingly, I order the committal of Mr. Cole into custody pursuant to s.29 of the Act to await surrender for prosecution and sentencing of the offence set out in the ATP.

[62] Mr. Cole, pursuant to s.38(2) of the Extradition Act I must advise you that you have 30 days after the date of committal, which is today, to apply for an appeal of the order of committal and to apply for bail; essentially for judicial interim release. During that 30 day period you also have the right pursuant to s. 43(1) of the Extradition Act to make submissions to the Minister relevant to his making a decision whether or not to surrender you to the United States.

[63] As already stated, I dismiss this application with respect to Mr. Akinbobola, without prejudice to the Attorney General of Canada renewing the application should the USA provide further evidence in a further supplementary ROC.

SPIES J.

Released: June 27, 2019 Edited Reasons Released: July 2, 2019