Superior Court of Justice

IN THE MATTER OF: AN APPLICATION PURSUANT TO THE EXTRADITION ACT S.C. 1999, c.18

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant

-and-

EJIRO EFEVWERHA a.k.a ANDRE EJIRO EFEVWERHA a.k.a. FESTUS AKPOBOME Person Sought

R E A S O N S F O R R U L I N G (On Disclosure Application)

HELD BY ZOOM VIDEOCONFEERNCE BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS On December 11, 2020 at BRAMPTON, Ontario

APPEARANCES: H. Graham Counsel for the Attorney General of Canada L. Adler Counsel for Ejiro Efevwerha

Table of Content

Legend [sic] – indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – indicates preceding word has been spelled phonetically.

REASONS FOR RULING PAGE 1 Transcript Ordered: December 16, 2020 Transcript Completed: December 16, 2020 Ordering Party Notified: December 17, 2020

Reasons for Ruling

FRIDAY, DECEMBER 11, 2020

Stribopoulos, J (Orally):

The United States of America seeks the extradition of Ejiro Efevwerha, a.k.a. Andrew Ejiro Efevwerha, a.k.a. Festus Akpobome.

At the outset, it deserves mention that the United States contends that Mr. Efevwerha and Mr. Akpobome are one in the same, something which Mr. Akpobome denies. I mention this because, as we shall see, the Record of the Case and the Revised Record of the Case make frequent mention of “Mr. Efevwerha.”

The Minister of Justice has issued an Authority to Proceed, under section 15 of the Extradition Act, S.C. 1999, c. 18 (as amended), authorizing the Attorney General of Canada to seek Mr. Akpobome's extradition. The Authority to Proceed lists fraud, contrary to s. 380 of the Criminal Code, as the Canadian offence for which the United States seeks extradition.

The allegations against Mr. Akpobome are that he orchestrated various fraudulent schemes using both Internet and telephone communications, which targeted elderly victims in the United States.

The victims reportedly lost hundreds of thousands of dollars. The United States alleges that two co-conspirators in that country (“CW1” and “CW2”) received proceeds from the frauds into American bank accounts before transferring them into other bank accounts, including accounts controlled by Mr. Akpobome in Ontario, and another co-conspirator in Quebec.

The United States filed an initial Record of the Case that detailed the evidence against Mr. Akpobome in support of its extradition request. That document reported, at paragraph 60, that "Canadian bank account records were acquired via a request for assistance pursuant to the U.S. Canada Mutual Legal Assistance Treaty." The same paragraph went on to detail evidence gleaned from those records, including transactions that connect Mr. Akpobome to proceeds from the fraud.

The Record of the Case also referenced Mr. Akpobome Ontario driver's license and reproduced his photograph from the license. It reported, at paragraph 25, that one of the co-conspirators in the United States, CW1, "could testify that he has met EFEVWERHA in person and the photograph attached hereto as Exhibit 2 depicts EFEVWERHA."

On April 23, 2019, Mr. Akpobome applied for an order to compel disclosure of the investigative efforts undertaken by Canadian law enforcement officials in response to requests by the United States. At that time, Mr. Adler, who represents Mr. Akpobome, explained that he required that disclosure to challenge the admissibility of the Canadian gathered evidence detailed in the Record of the Case. Under section 32(2) of the Extradition Act: “Evidence gathered in Canada must satisfy the Rules of Evidence under Canadian law in order to be admitted.”

However, before the court could rule on that initial application for disclosure, Ms. Mamikon wrote to the court and Mr. Adler on May 7, 2019, to advise that the Attorney General of Canada would no longer be relying on the information contained in paragraph 60 of the Record of the Case. The court responded by writing to counsel to inquire whether the disclosure application still needed to be decided. On May 22, 2019, Mr. Adler responded by letter and advised given that the Attorney General of Canada would no longer be relying on paragraph 60 of the Record of the Case, the disclosure application was moot. As a result, the court never rendered a decision on the initial disclosure application.

Since then, the United States has submitted a Revised Record of the Case. It largely mirrors the original Record of the Case but contains no reference to any evidence gathered in Canada. As result, it makes no mention of the Canadian banking records or Mr. Akpobome’s Ontario driver's license photo. Included in the information detailed in the Revised Record of the Case, are the following paragraphs,

59. Numerous email accounts were examined during the course of this investigation and their contents will be introduced at trial. CW1 provided access to his account and its contents will be introduced via his testimony. The other email accounts discussed below were acquired via search warrants authorized by the Western District of Texas and served on the respective email service providers in the United States. In each case, the email provider, whether it was Yahoo, Google, or Microsoft, has provided a business records affidavit which authenticates the information. These records show the following,

EFEVWERHA: casaburril@yahoo.ca, ejiroefewerha@yahoo.com, and festusakpobome@yahoo.com

60. The casaburril@yahoo email account was analyzed, which contained Yahoo chats as well as email exchanges. The account contained voluminous fraud scheme evidence, including hundreds of chats about various scams and moving scam proceeds with conspirators, chats with Eruotor, emails to EGORHO, emails with CWI, and a lengthy list of emails and accompanying passwords demonstrating EFEVWERHA’s use of numerous email accounts. The IP addresses used to access the account were in Nigeria and Ontario, Canada. Additionally, analysis of the email account revealed that EFEVWERHA had become a citizen of Canada under the name of Festus Akpobome (for example, casaburril@yahoo.ca is used to forward information to the festusakpobome@yahoo.com account including photos of vehicles, photos of real estate, photos of electronics, receipts, deposit slips, and bank accounts. Pictures discovered in the email accounts confirm that EFEVWERHA is Festus Akpobome, including a photograph of EFEVWERHA receiving his citizenship under the name Festus Akpobome. Several of the email exchanges and chats are described in detail below.

61. In furtherance of a wide-ranging investigation into multiple fraud schemes, law enforcement agents created a binder containing photographs of the faces of over three-dozen different individuals. There was only one photograph of each individual in the binder. In August of 2016, CW2 was shown the binder and allowed to flip through all of the pages. CW2 identified multiple individuals in the binder, including a photograph of EFEVWERHA. CW2 stated that he met EFEVWERHA in person. The photograph identified by CW2 was from a 2005 U.S. visa application. I am attaching that photograph as Exhibit two to this Revised Record of the Case For Prosecution.

Mr. Akpobome now brings a second application for disclosure. In the notice filed in support of this application, Mr. Adler again seemed to be requesting disclosure of information concerning how American law enforcement accessed his client's Canadian banking records. However, during the hearing, given his earlier concession, he withdrew that aspect of the application.

Instead, Mr. Adler now seeks disclosure from Canadian authorities of how American law Enforcement,

1. Obtained information concerning Mr. Akpobome’s Ontario driver's license and driver’s license photo; and

2. Accessed information concerning the "casaburril@yahoo.ca" email account and determined that it was accessed through an IP addresses in Ontario.

In seeking disclosure, Mr. Adler makes several arguments.

First, he submits that an individual enjoys a reasonable expectation of privacy in information concerning their driver's license and driver's license photograph. If American law enforcement gained access to these with the assistance of Canadian law enforcement, he submits that raises the possibility of a violation of Mr. Akpobome’s s. 8 Charter rights.

Second, he says there is a material difference between a co-conspirator identifying Mr. Akpobome from a recent Ontario driver's license photograph and a 2005 photograph from a U.S. visa application. He submits the difference raises serious questions concerning the quality of the evidence available to the requesting state capable of identifying his client as the person involved in the fraudulent schemes.

Third, relying on R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, Mr. Adler submits that his client enjoyed a reasonable expectation of privacy in any email communications in which he was a participant. He argues that where a participant in such communications is in Canada, foreign law enforcement officials should comply with the Charter's requirements before accessing such email communications. He submits that he requires further disclosure concerning how law enforcement officials in the United States accessed his client's email communications so that he can further develop the factual foundation for a potential Charter application.

On behalf of the Attorney General of Canada, Ms. Graham responds that Mr. Akpobome is not entitled to the disclosure he now seeks. She reminds the court that an extradition hearing is not a criminal trial. A person subject to an extradition request is not entitled to the same disclosure that a criminal accused receives in the Canadian criminal process. She emphasizes that the Revised Record of the Case includes no Canadian gathered evidence, which might have entitled Mr. Akpobome to further disclosure regarding how that evidence was collected. Given that such evidence is no longer “on the table”, Ms. Graham submits the way in which any such evidence was collected is now entirely moot and not justiciable before me in my role as an extradition judge. Therefore, she submits that the application for disclosure should be dismissed.

Historically, the Supreme Court of Canada has emphasized that an extradition hearing is not the same as a domestic criminal trial. As the Court observed in Dynar: “The obligation on the Requesting State is simply to establish a prima facie case for the surrender of the fugitive and it is not required to go further than this.”: R. v. Dynar, [1997] 2 S.C.R. 462, at p. 518. As a result, a requesting state is not required to summarize all of the evidence it intends to lead at trial in the Record of the Case submitted to support its request for extradition: R. v. Finn, 2017 BCCA 443, at para. 37.

In Dynar, the Supreme Court also addressed the disclosure to which a person subject to an extradition hearing is entitled. Although the role of an extradition judge bears similarities to that of a justice presiding at a preliminary inquiry, the Court emphasized that a "committal hearing is neither intended nor designed to provide the discovery function of a domestic preliminary inquiry.". Dynar, p. 518. The requested person "is entitled to know the case against him,” which ordinarily means “disclosure of materials on which the requesting state is relying to establish its prima facie case.". Dynar, at p. 518.

The authority of an extradition judge to order disclosure expanded with the addition of s. 25 to the Extradition Act. That provision confers on extradition judges the jurisdiction to grant Charter remedies limited to those "breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process": United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57. As Arbour J. explained in Kwok, at para. 100:

The extradition judge may only order the production of materials relevant to the issues properly raised at the committal stage of the process, subject to his or her discretion to expand the scope of that hearing to allow the parties to establish the factual basis for a subsequent Charter challenge, when it is expedient to do so, including, obviously, when there is at least an air of reality to the Charter claims (Dynar, supra, per Cory and Iacobucci JJ., at para. 141). Requests for disclosure of materials related to issues which properly belong to the executive phase of extradition, and to the judicial review thereof, have no independent relevance before the extradition judge and are subsumed in his or her discretion to hear evidence related to such issues.

Further guidance on when an extradition judge should exercise their authority to order disclosure came in United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, with Justice Charron explaining, at para. 29, that:

...because extradition proceedings are not concerned with issues of guilt or innocence, the Court's jurisdiction to grant Charter remedies, conferred by s. 25 of the Act, is limited to those ‘breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process’. A Charter breach, allegedly committed in the gathering of evidence in Canada, is obviously one of those issues. Thus, the extradition judge has the jurisdiction to entertain an application under s. 24(2) of the Charter for the exclusion of evidence obtained in contravention of the Charter. Mr. Anekwu argues that because of the limited scope of disclosure in an extradition proceeding, the onus should be on the requesting state to prove that the evidence is justifiably put before the Court. Otherwise, he submits, this would leave both the person sought and the extradition judge without any meaningful ability to inquire into the manner in which the evidence is gathered in Canada. I see no reason for reversing the usual rule which puts the onus of proving a Charter breach on the person who claims it. 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 on how it was obtained. As in any Charter application, the requisite evidentiary basis may then 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: Kwok, at para. 100.

Finally, it also deserves mention that an extradition judge has no authority to order a requesting state to furnish disclosure of evidence its prosecutorial officials intend to rely on at trial should the requested person be extradited: R. v. Lore (1997) 116 C.C.C. (3d) 255 (Que.C.A.), at para. 48; United States of America v. Qumsyeh, 2012 ONSC 5987, at paras. 43-44; United States v. Go, [2008] O.J. No. 3012 (S.C.), 2008 ONSC 38267, at paras. 14-15.

In light of these governing principles, I return to the disclosure sought by Mr. Akpobome on this application.

It bears emphasis that unlike his earlier application, since abandoned, Mr. Akpobome is not now seeking the disclosure of information regarding evidence gathered in Canada by Canadian law enforcement officials. Unlike the initial Record of the Case, the Revised Record of the Case makes no reference to any such evidence.

I deal first with the request for an order compelling disclosure concerning the Ontario driver's license photo. Mr. Adler submits that obtaining further information about how American authorities secured a copy of the photograph is relevant to a potential Charter claim.

With respect, even assuming, for the sake of this analysis, that Canadian law enforcement officials accessed that photograph through the Ministry of Transportation's database and provided a copy of it to their American counterparts, there is no air of reality to the suggestion that this violated Mr. Akpobome’s section 8 Charter rights.

In suggesting a potential Charter breach, Mr. Adler points to section 205.0.1(5) of the Highway Traffic Act, R.S.O. 1990, c. H.8, to argue that his client enjoys a reasonable expectation of privacy in his driver’s license and driver’s license photo. On my reading of that provision, it has no bearing on the disclosure of information by the Ministry of Transportation concerning licensed drivers in Ontario.

Section 205.0.1(1) introduces the provision. It provides: “The Minister may request and collect information from any public body or related government, as he or she considers appropriate, if the Minister considers it necessary for a purpose set out in subsection (5).”

In other words, the limitations contained within subsection (5) constrain the Minister’s ability to collect or disclose information from another public body or government. For example, another Ministry or agency within the Ontario government, or the government of another province. The section does not speak to the collection or disclosure of information by the Ministry of Transportation itself, like information contained within its database of licensed drivers in Ontario.

Mr. Adler was unable to refer me to any decision holding that individuals enjoy a reasonable expectation of privacy in their driver's license information or photograph on file with the Ministry of Transportation. Given the highly regulated nature of driving and that drivers’ licenses are government-issued identification, I would be rather surprised if any court had ever held that before accessing driver's license information or photographs, s. 8 of the Charter requires the police to obtain a warrant.

In any event, the Revised Record of the Case does not reference Mr. Akpobome's driver's license or reproduce the photograph from it. Quite simply, there is no Canadian gathered evidence detailed in the Revised Record of the Case that could be subject to exclusion under section 24(2) of the Charter.

As a result, there is no air of reality to any potential Charter claim that the disclosure sought could assist in substantiating that would pertain to the circumscribed issues relevant at the committal stage of the extradition process.

Ultimately, the real purpose of this particular request for production seems to be the gathering of potential evidence by which to challenge the quality of the identification evidence detailed in the Revised Record of the Case. As mentioned, however, this court has no authority to order disclosure of evidence that might be available to the requesting state for prosecution that it has not put forward to substantiate its request for extradition.

Borrowing from the language of the Court of Appeal in United States of America v. McAmmond (2005), 192 C.C.C. (3d) 149 (C.A.), 2005 ONCA 20, at para. 16, once the requesting state takes impugned Canadian investigation materials off the table for purposes of the extradition proceedings and disavows any reliance upon them, any potential Charter claim regarding how that evidence was collected is pre-empted. In short, it has no relevance to the circumscribed issues that I must address in my limited role as an extradition judge.

Ultimately, I am not satisfied that Mr. Akpobome has demonstrated a basis for this court to order the production of information concerning how American law enforcement officials obtained information concerning his Ontario driver’s license or his driver’s license photo.

I turn next to the request for production concerning the "casaburril@yahoo.ca" email account. The Revised Record of the Case reports, at paragraph 59, “that information concerning that email account was acquired via search warrants authorized by the Western District of Texas and served on the respective email service providers in the United States."

In other words, American law enforcement officials accessed that account under the authority of a search warrant issued and executed in the United States. Further, on a fair reading of the Revised Record of the Case, it is apparent that it was through that same examination that the agent was able to determine that "The IP addresses used to access the account were in Nigeria and Ontario, Canada." (I note, parenthetically, that the geographic location associated to IP addresses is publicly available information.)

The Charter has no application to foreign law enforcement officials operating outside of Canada: see R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292. As a result, the manner in which American law enforcement officials collected evidence in the United States during their investigation cannot attract Charter scrutiny.

In my view, Marakah in no way alters this fundamental limitation on the jurisdictional reach of the Charter. That case involved a crime committed in Canada, that was investigated by Canadian police, involving suspects located in Canada. The circumstances here are very different. As the Supreme Court noted in Hape, at para. 99,

When individuals choose to engage in criminal activities that cross Canada's territorial limits, they can have no guarantee that they carry Charter rights with them out of the country. As this Court has noted in the past, individuals should expect to be governed by the laws of the state in which they find themselves and in which they conduct financial affairs. It is the individual's decision to go to or operate in another country that triggers the application of the foreign law...

It matters not that Mr. Akpobome may have been located in Canada when he was sending his e-mails. Just like in Dynar, “the evidence was gathered by American authorities, on American soil, for an American investigation.”: Dynar, at p. 519. Therefore, no justiciable Charter issue arises in light of the evidence adduced and the nature of an extradition hearing.

All of that said, I want to be clear regarding the implications of my ruling. I do not hold that law enforcement officials in a foreign state are free to enlist their Canadian counterparts to collect evidence in Canada in disregard of the fundamental rights and freedoms guaranteed to those in Canada under the Charter.

In the unlikely event that Canadian officials acted on such an improper invitation and secured evidence in violation of the Charter for use by the requesting state in its prosecution of the requested person, the situation would be very different.

If such a claim had an air of reality, I would not hesitate in ordering Canadian officials to disclose their role in collecting evidence and sharing it with their foreign counterparts. There would be a justiciable Charter issue in such a scenario, a potential for staying the extradition proceedings because of an abuse of process: see generally United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19.

However, based on the record before me, there is no air of reality for claiming that law enforcement officials in the United States enlisted their Canadian counterparts to undertake any improper actions on their behalf.

Instead, the record reveals that when it became apparent that including Canadian gathered evidence in the Record of the Case might delay the extradition hearing because it precipitated requests and applications for disclosure, the requesting state chose to take that evidence off the table. Based on the record before me, there is no basis to suggest that there was anything improper about that decision.

For all of these reasons, the court dismisses Mr. Akpobome's application for disclosure.

...END OF RULING

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, Mary Gabriele certify that this document is a true and accurate transcript based on the quality of the recording and annotations of the recording of U.S.A. Ejiro Efevwerha; a.k.a. Andrew Efevwerha; a.k.a. Festus Akpobome in the Superior Court of Justice at 7755 Hurontario, Brampton Ontario, taken from Recording 3199_406_20201211_093326__30_STRIBOJ that has been certified in Form 1 by A. Valentine

December 21, 2020

Date Mary G. Gabriele Authorized Court Transcriptionist

ACT # 7181875571 (416) 200-4103