Court File and Parties
COURT FILE NO.: CRIM 18/1350 DATE: 2021-03-12
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA on behalf of THE UNITED STATES OF AMERICA Ms. H. Graham, for the Applicant Applicant
- and -
EJIRO EFEVWERHA, aka ANDREW EJIRO EFEVWERHA, aka FESTUS AKPOBOME Mr. L. Adler, for Mr. Akpobome Respondent
HEARD: February 2, 2021
REASONS FOR DECISION
(Request for Extradition to the United States of America)
Introduction
1The United States of America seeks to extradite Festus Akpobome to face trial for conduct that would, if committed in Canada, constitute fraud under s. 380 of the Criminal Code, R.S.C. 1985, c. C-46.
2Fraud is the offence listed in the authority to proceed issued by the Minister of Justice under s. 15 of the Extradition Act, S.C. 1999, c. 18 (as amended), which authorized the Attorney General of Canada to seek an order for Mr. Akpobome’s committal into custody to await surrender to the United States for prosecution.
3The United States contends that Mr. Akpobome is “Ejiro Efevwerha” and “Andrew Ejiro Efevwerha” – aliases it alleges he used to orchestrate numerous fraudulent schemes that targeted elderly victims in that country. The fraudsters communicated with the victims through emails and telephone calls, employing various ruses to defraud them of 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 the money to Canadian bank accounts controlled by Mr. Akpobome and another co-conspirator (Ejovwoke Mark Eghorho).
4On behalf of Mr. Akpobome, Mr. Adler concedes that the evidence summarized in the Revised Record of the Case (RROC) demonstrates Efevwerha’s participation in activities that would constitute fraud if committed in Canada. In other words, there is no issue that the evidence establishes a prima facie case of fraud involving Efevwerha. However, Mr. Adler contests that the United States has demonstrated that Mr. Akpobome is Efevwerha. As a result, he submits that the court must discharge Mr. Akpobome under s. 29(3) of the Extradition Act.
5Alternatively, should the evidence justify Mr. Akpobome’s committal for extradition, Mr. Adler argues American law enforcement officials have misconducted themselves during the extradition process, undermining the extradition hearing's fairness resulting in an abuse process that warrants a stay of these proceedings.
6On behalf of the United States, Ms. Graham submits that the evidence, when considered in its totality, furnishes a reasonable inference that Mr. Akpobome is Efevwerha. Additionally, she maintains that the United States has not engaged in any misconduct undermining the extradition hearing's fairness and resulting in an abuse of process.
7There are, therefore, two issues to be decided by the court. First, whether the United States has established that Mr. Akpobome is one and the same person as Efevwerha? Second, if it has, whether the United States’ conduct during the extradition process amounts to an abuse of process justifying a stay of proceedings?
I. Has the United States Established that Mr. Akpobome is Efevwerha?
a. Extradition Judge’s Role, Test for Committal, and Proof of Identity
8The role of an extradition judge under s. 29(1)(a) of the Extradition Act and the test governing whether to order committal are now well established. As Cromwell J. explained, in M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at paras. 36-40:
36The 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 Extradition 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”: s. 29(1)(a) of the Extradition Act; see also Ferras, at para. 50.
37The reference to evidence that “would justify committal for trial in Canada” in s. 29(1)(a) of the Extradition Act incorporates the test that a justice conducting a preliminary inquiry must apply when deciding whether to commit an accused for trial in Canada: see, e.g., Skogman v. The Queen, [1984] 2 S.C.R. 93; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. This is also the test that applies to whether a trial judge should order a directed verdict of acquittal at the end of the Crown’s case: see e.g., United States of America v. Shephard, [1977] 2 S.C.R. 1067; Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. Charemski, [1998] 1 S.C.R. 679.
38Thus, the language of s. 29(1)(a) links the role of the extradition judge in relation to double criminality to the test for committal (and directed verdicts). The incorporation of the test for committal to trial is meant to make the extradition process efficient, permitting prompt compliance with Canada’s international obligations, while also ensuring that there is at least a prima facie case against the person of a Canadian crime: see, e.g., United States of America v. Dynar, [1997] 2 S.C.R. 462, at paras. 121‑22; Ferras, at para. 21. The extradition judge’s role is to determine whether there is a prima facie case of a Canadian crime, not to become embroiled in questions about possible defences or the likelihood of conviction. Extradition hearings are not trials; they are intended to be “expeditious procedures to determine whether a trial should be held”: Dynar, at para. 122, quoting McVey (Re), [1992] 3 S.C.R. 475, at p. 551.
39However, the role of the extradition judge at the committal phase has evolved as a result of amendments to other aspects of the Extradition Act and the requirements of the Charter. The result is that while the test for committal for trial continues to apply in extradition, the role of the extradition judge in applying that test differs in two respects from the preliminary inquiry context.
40The first difference is that the extradition judge, unlike the preliminary inquiry justice, may grant Charter remedies that pertain directly to the circumscribed issues relevant to committal: see, e.g., R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532. The second is that the extradition judge, unlike the preliminary inquiry justice, must engage in a limited weighing of the evidence to determine whether there is a plausible case. Thus, where the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case is considered insufficient for committal: Ferras, at para. 54. This ensures that the extradition process does not “deprive the person sought of the independent hearing and evaluation required by the principles of fundamental justice applicable to extradition”: Ferras, at para. 40; see also paras. 47‑49.
9As the Supreme Court noted in M.M., the extradition judge must be “satisfied that the person before the court is the person sought”: at para. 36. Therefore, proof of identity is an essential precondition to ordering a person committed for extradition. In terms of the controlling standard, the case law recognizes that the extradition judge must be satisfied that the evidence relied on by the requesting state establishes identity on a balance of probabilities: United States v. Batista-Cervantes, 2014 ABCA 408, at para. 3; United States of America v. Gunn, 2007 MBCA 21, 212 Man. R. (2d) 241, at para. 28, leave to appeal ref’d [2007] S.C.C.A. No. 108; Philippines (Republic) v. Pacificador (1993), 14 O.R. (3d) 321 (C.A.), at p. 325, leave to appeal ref’d [1993] S.C.C.A. No. 415.
10In light of the test for committal and the standard for establishing identity, these reasons turn next to the evidence, especially as it concerns whether Mr. Akpobome is one and the same person as Efevwerha.
b. The Evidence at the Hearing
11The RROC reports that CW2 knew Efevwerha from Nigeria. Additionally, that while on vacation in Toronto, CW2 visited with Efevwerha. The RROC also details the circumstances under which CW2 identified a photograph of Efevwerha:
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 2016, CW2 was shown the binder and allowed to flip through all of the pages. CW2 identified 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 2 to this Revised Record of the Case For Prosecution.
The photograph identified by CW2 is in colour, of high quality, and clearly shows the entirety of the person’s face. During the extradition hearing, which took place over Zoom videoconference, the court was able to view Mr. Akpobome and compare his appearance in February 2021 to the person depicted in the 2005 photograph: see Extradition Act, s. 37(b).
12The RROC summarizes evidence showing that Efevwerha used numerous Yahoo email accounts to carry out the frauds and communicate with the co-conspirators in the United States (CW1 and CW2), including casaburri1@yahoo.ca, casaburri1@yahoo.com, and ejiroefewerha@yahoo.com. There were emails between those accounts and the email address festusakpobome@yahoo.com. Law enforcement officials gained access to these email accounts through search warrants issued in the United States. The RROC summarizes the evidence gleaned from an analysis of the email accounts as follows:
The casaburri1@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.
On July 2, 2013, festusakpobome@yahoo.com says his phone number is 416-878-1514 and his address is 38 Thorndale Rd, Brampton, Ontario. In a July 4, 2014 email, casaburri1@yahoo.ca says his address is 38 Thorndale Rd, Brampton. In a January 30, 2015 email, ejiroefewerha@yahoo.com writes that his telephone number is 416-878-1514.
On May 7, 2015, a bank sends an email to festusakpobome@yahoo.com regarding a wire transfer, but addresses the email to “Ejiro” and says the recipient of the wire was “Ejiro Efewerha.”
On November 21, 2015, the ejiroefewerha@yahoo.com account received an email containing a receipt for the purchase of iPad applications billed to Festus Akpobome, but the Apple ID on the account is “ejiroefewerha.”
EFEVWERHA used two Yahoo! Email accounts, casaburri1@yahoo.com and casaburri1@yahoo.ca, interchangeably. Yahoo! Has confirmed that both resolved to the same email account.
13The United States filed evidence at the hearing to establish Mr. Akpobome resided at 38 Thorndale Road in Brampton between 2010 and late 2018. That evidence has two sources. First, it filed the summons that compelled Mr. Akpobome’s appearance before the court. It issued in November 2018 addressed to Mr. Akpobome at 38 Thorndale Road. Second, it filed copies of Mr. Akpobome’s Ontario driver’s licences, one from 2010 and the other from 2012, each of which lists that same address.
14Mr. Adler objects to the United States relying on copies of his client’s drivers’ licences to justify his extradition, given that Mr. Akpobome produced these to support a disclosure application that he ultimately abandoned. (The United States then filed copies of the drivers’ licenses at the hearing.) Mr. Adler submits that it would offend basic notions of procedural fairness and run afoul of s. 7 of the Charter to permit the requesting state to rely on materials filed by the person sought for an entirely different purpose to justify that individual’s committal for extradition. Mr. Adler argues that the circumstances are analogous to what took place in Batista-Cervantes. With respect, I cannot sustain Mr. Adler’s objection.
15In Batista-Cervantes, the extradition judge, without notice to the parties, relied on materials contained within the court file – the provisional arrest warrant and bail documents – in coming to her conclusion concerning identity. The Alberta Court of Appeal held that the extradition judge erred in doing so because the requesting state did not file the documents to support its application for extradition, and the person sought was denied an opportunity to make submissions concerning those materials: see Batista-Cervantes, at paras. 8-9.
16In contrast, in this case, the requesting state filed the summons and copies of the drivers’ licenses as evidence at the extradition hearing. As a result, Mr. Akpobome had an opportunity to make submissions concerning these documents. No constitutional principle privileges a litigant’s court filings, thereby precluding such materials from being used against that litigant.
17Mr. Akpobome challenges the reliability of the evidence the United States relies on to seek his extradition. Beyond pointing out what he argues are obvious frailties in that evidence, he seeks to introduce a copy of the criminal complaint against one of the alleged co-conspirators filed before the United States District Court in the Western District of Texas. It consists of one page that sets out the charges against the alleged co-conspirator, followed by an 11-page affidavit that details at least some of the evidence against that person.
18Mr. Akpobome wants to introduce the criminal complaint as evidence at the hearing to highlight what he argues are material inconsistencies between the evidence detailed in the affidavit and the summary of evidence found in the RROC. He submits that this evidence is admissible on the extradition hearing. He argues the differences it reveals serve to rebut the presumption of reliability that would otherwise attach to the certified evidence detailed in the RROC: see United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77, at paras. 66-67.
19To be sure, the person sought for extradition is entitled to challenge the evidence’s sufficiency, including the reliability of the evidence certified in the record of the case. They can attempt to do so by relying on the requesting state’s materials or calling evidence: United States of America v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380, at para. 31.
20The person sought may adduce evidence “relevant to the tests set out in subsection 29(1) if the judge considers it reliable”: Extradition Act, s. 32(1)(c). As a result, the evidence must possess “sufficient indicia of reliability to make it worth consideration by the judge at the hearing”: Ferras, at para. 53. Additionally, “the evidence must be relevant to the task of the extradition judge, that is, whether the test for committal under s. 29(1) of the Extradition Act has been met”: M.M., at para. 76.
21Before the court receives evidence from the person sought to challenge the evidence presented by the requesting state, the extradition judge “generally should, require an initial showing that the proposed evidence is realistically capable of satisfying the high standard that must be met in order to justify refusing committal on the basis of unreliability of the requesting state’s evidence”: M.M., at para. 77. Given that the criminal complaint is a 12-page sworn document that details at least some of the evidence against one of the alleged co-conspirators, I am satisfied that it qualifies as relevant and reliable evidence. Further, given its brevity, there is little to be gained in subjecting it to a preliminary vetting. Its admission will not consume any additional court time or occasion any delay.
c. Analysis
22In his written and oral submissions on behalf of Mr. Akpobome, Mr. Adler identifies what he characterizes as significant deficiencies in the evidence filed by the United States. He offers a critical analysis of the evidence summarized in the RROC. He also highlights what he argues are material inconsistencies between its summary of the evidence and the evidence detailed in the affidavit accompanying the criminal complaint against the alleged co-conspirator. By doing so, Mr. Adler endeavoured to demonstrate that the evidence proffered by the United States is so unreliable that it provides a dangerous or unsafe basis for conviction. Given this, he argued that the court should decline to order Mr. Akpobome’s committal for extradition: see Ferras, at para. 54; M.M., at para. 40.
23With respect, I cannot agree that the evidence summarized in the RROC suffers from the kind of fatal shortcomings Mr. Akpobome claims. To be sure, a critical reading gives rise to many of the unanswered questions that Mr. Adler identified in his submissions. However, that is far from surprising. After all, as the Supreme Court of Canada has repeatedly cautioned, extradition hearings are not trials: see M.M., at para. 38; United States of America v. Dynar, [1997] 2 S.C.R. 462, at p. 514; McVey v. United States of America, [1992] 3 S.C.R. 475, at p. 551. They are meant to be “expeditious procedures to determine whether a trial should be held”: McVey, at p. 551.
24It follows that a requesting state is under no obligation to summarize all of the evidence it might have available for trial in the record of the case: United States of America v. Finn, 2017 BCCA 443, at para. 37. The expectation is far more modest. “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”: Dynar, at para. 132.
25After carefully considering all of the evidence, despite Mr. Adler’s able submissions, I am satisfied that the United States has demonstrated on a balance of probabilities that Mr. Akpobome is the person sought. In other words, the United States has established that Mr. Akpobome is more likely than not the person referred to in the RROC as Efevwerha. In coming to that conclusion, I have considered the cumulative effect of all the evidence, as is required, which includes the following:
26First, there is the fact that CW2 knew Efevwerha from Nigeria and visited with him in Toronto. As a result, when he identified the 2005 visa application photograph from the three dozen photos shown to him, CW2 was not identifying a stranger. Quite the opposite, Efevwerha was someone with whom CW2 was relatively familiar. Given this, I do not share Mr. Adler's concerns with the identification procedure used by the American authorities.
27Second, there is a striking resemblance between Mr. Akpobome and the person in the 2005 visa application photo that CW2 identified as Efevwerha. Unlike the photograph involved in The Attorney General of Canada v. Siyad, 2019 ONSC 3190, a decision Mr. Adler relies on; the 2005 photo is of very high quality. As a result, the court is not being asked to compare the appearance of the person sought with a photograph that is unsuitable for such a comparison.
28In his submissions, Mr. Adler also expressed concern with the court conducting what is effectively a cross-racial identification. I recognize the risks inherent in cross-racial identifications, which, at a trial, may sometimes require a special jury instruction: see R. v. Richards (2004), 70 O.R. (3d) 737 (C.A.), at para. 32. To be sure, such concerns suggest a need for caution. However, they do not foreclose the court from conducting a reliable comparison.
29There is a very close resemblance between Mr. Akpobome and the person in the 2005 visa application photo. It is evident in Mr. Akpobome’s appearance before the court in February 2021 and even more so with his drivers’ license photographs from 2010 and 2012. Mr. Akpobome’s skin colour and facial characteristics (including his forehead, eyes, cheekbones and nose) appear very similar to those of the person in the 2005 photograph.
30To be sure, there are some differences. The hair of the man in the 2005 photograph is only thinning at the top. In contrast, Mr. Akpobome has even less hair at the top of his head in the drivers’ license photographs and far less now. Mr. Akpobome also appears to have a fuller face now than he did in his drivers’ license photographs and compared to the person in the 2005 photo. Additionally, he has more facial hair now than he had in his driver’s license photographs or the person in the 2005 photo.
31Nevertheless, these differences are entirely consistent with Mr. Akpobome losing his hair and gaining weight, changes in keeping with aging over the last 16 years. His facial hair is far from the sort of fixed characteristic that detracts from making an identification. Ultimately, none of the differences undermines the core similarities in appearance between Mr. Akpobome and the person identified by CW2 as Efevwerha from the 2005 photograph.
32Fourth, there is the content of the emails sent and received between the email accounts implicated in the fraud. Their contents reasonably support an inference that the same person was using these accounts, was accessing them from Canada at times, and resided at 38 Thorndale Road in Brampton. The evidence filed by the United States, including the summons and drivers’ licenses, reasonably support an inference that Mr. Akpobome resided at that same address during the relevant period.
33This collection of evidence, considered in its totality, logically supports a reasonable inference that Mr. Akpobome is the person sought by the requesting state identified as Efevwerha in the RROC. The only possible alternative inference is that Efevwerha is someone who bears a striking resemblance to Mr. Akpobome and resided at the very same address he did during the relevant period, for example, his brother. However, there is no evidence to suggest that such a person exists. Accordingly, drawing such an inference would require engaging in unsubstantiated speculation and conjecture, which is not an acceptable form of reasoning when assessing circumstantial evidence: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37; United States of America v. Huynh, [2005] O.J. No. 4074 (C.A.), at para. 7.
34In any event, if the circumstantial evidence proffered by the requesting state is reasonably capable of supporting competing inferences, just like a justice presiding at a preliminary inquiry, it is not the function of an extradition judge to choose between them: M.M., at para. 71, citing with approval United States of America v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380, at paras. 28-31; see also R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18 (in the context of a preliminary inquiry, noting that, “where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered”).
35Ultimately, based on all of the evidence, I am satisfied on a balance of probabilities that Mr. Akpobome is the person sought by the United States. Further, I am also satisfied that there is evidence available to the United States of conduct by Mr. Akpobome that, had it occurred in Canada, would justify committing him to stand trial for fraud, the offence listed in the authority to proceed. As a result, the United States has demonstrated that Mr. Akpobome should be committed into custody to await surrender for prosecution in the United States.
II. Has Mr. Akpobome Established an Abuse of Process?
36The Supreme Court of Canada has recognized that an extradition judge has the authority to order a stay of extradition proceedings to remedy an abuse of process: United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587. Mr. Adler submits that the court should exercise that authority in this case. In arguing that the United States’ conduct during this proceeding has resulted in an abuse of process, Mr. Adler has essentially repurposed what he characterizes as the evidence’s shortcomings. He submits that these significant deficiencies call into question the professionalism and integrity of the requesting state’s officials. Mr. Adler argues there has been “coordinated blatant unfairness” by the lead investigator and the prosecutor, including through the “withholding of evidence” and “the overall ‘carelessness’ of the RROC.”
37With respect, I cannot agree with Mr. Adler’s characterizations either of the evidence put forward by the United States or its conduct during the extradition process. To be sure, the United States could have utilized a more reliable identification procedure instead of having CW2 review a book of three dozen photographs. Nevertheless, given that CW2 was no stranger to Efevwerha, I am not persuaded that the procedure used resulted in “blatant unfairness.” In any event, as explained above, proof of identity, in this case, does not only depend on CW2’s evidence.
38Nor do errors in the RROC’s summary of evidence or minor differences between it and the evidence detailed in the affidavit supporting the criminal complaint against the alleged co-conspirator betray a level of carelessness that could undermine the fairness of the extradition hearing. At worst, there are a few minor typographical errors in these documents, for example, in places substituting an “I” for a “1” in the casaburri1@yahoo.ca email address or omitting the domain name at the end of some email addresses. Human errors of that kind hardly serve to cast doubt on the integrity and good faith of a requesting state’s law enforcement officials. They fall well short of occasioning an abuse of process.
39The balance of Mr. Akpobome’s complaints regarding the United States’ conduct focus on its tactical decisions during the extradition process. For example, its decision to withdraw from consideration Canadian-gathered evidence when Mr. Akpobome pressed for disclosure concerning how that evidence was collected. Given that the case law recognizes that a requesting state is entitled to take just such an approach (see United States v. McAmmond (2005), 192 C.C.C. (3d) 149 (Ont. C.A.), at para. 16), it is hard to fault the United States for doing so in this case.
40Similarly, a requesting state’s decision not to disclose in the record of the case all of the evidence that it might have available for trial cannot undermine the fairness of an extradition hearing. Extradition hearings are not trials. Accordingly, a requesting state is generally only required to disclose the evidence it relies upon to establish a prima facie case: Dynar, at para. 132; United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 101. It is difficult to find fault with a requesting state for only disclosing what Canadian extradition law requires.
41In short, I am far from convinced that the conduct of the United States during this extradition proceeding amounts to an abuse of process.
Conclusion
42For these reasons, an order will issue under s. 29(1) of the Extradition Act, committing Mr. Akpobome into custody to await surrender for prosecution in the United States of America for conduct that, had it occurred in Canada, would amount to fraud under s. 380 of the Criminal Code.
43As required by s. 38(2) of the Extradition Act, the court hereby informs Mr. Akpobome that his surrender shall not occur until after the expiry of 30 days. Further, he has a right to appeal the committal order and apply for judicial interim release.
Signed: Justice J. Stribopoulos
Released: March 12, 2021