Court File and Parties

COURT FILE NO.: CR0000012-00MO-21 DATE: 20220408 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: UNITED STATES OF AMERICA v. OLAOLU ALABI

BEFORE: MOLLOY J.

COUNSEL: Heather J. Graham, for the Attorney General of Canada, on behalf of the United States of America, Applicant (Respondent on Stay Application) G. Purves, for the Person Sought (Applicant on the Stay Application)

HEARD: April 7, 2022, by Zoom

Endorsement

Introduction

[1] The United States of America seeks the extradition of Olaolu Alabi for prosecution on charges related to his role in two alleged fraudulent schemes in the United States.

[2] Mr. Alabi seeks a stay of the extradition proceedings. His counsel advised that if a stay is not granted, he would be making no submissions on whether the committal order should issue in the extradition proceedings.

[3] Mr. Alabi filed an affidavit on the stay application and was cross-examined on that affidavit before me. I then heard argument on the stay application. I dismissed that application, indicating that written reasons would follow. I was satisfied that the test for committal was met and signed the committal order and report. My reasons are set out below.

No Basis for Stay of Extradition Proceedings

[4] Mr. Alabi applies for a stay on two grounds:

(i) The extradition proceeding is a ruse, only brought by the United States to bring Mr. Alabi into their jurisdiction in order to obtain his evidence as a material witness in charges against other persons facing fraud charges there;

(ii) Police officers in the United States coerced him into assisting them to build a case against these other persons and falsely promised that they would protect him if he cooperated with them, but then reneged on those promises with the result that his life is in danger if he is sent back to the United States.

[5] Mr. Alabi contends that the United States has no legitimate intention of prosecuting Mr. Alabi for fraud. Mr. Alabi’s counsel has made repeated requests that the United States confirm whether they need Mr. Alabi as a witness for the prosecution of the other individuals arrested, but no response has been received. The applicant argues that I should draw an inference from this silence that the United States has made this extradition request solely for the purpose of securing Mr. Alabi’s presence in the United States.

[6] I accept that, as a question of law, if a requesting state uses the extradition process as a ruse to have a person transferred to their country from Canada without a legitimate intention to prosecute that person for the crimes set out in the extradition request, that could form the basis for a stay of proceedings based on an abuse of process. Invoking our extradition process for an improper purpose outside the purview of the legislation would be an interference with the proper administration of our justice system.

[7] However, I do not agree that there is any factual basis upon which I could determine that this is indeed the intention of the United States in seeking extradition. The American authorities might well seek to compel Mr. Alabi’s testimony in other cases if he is within their jurisdiction. However, that does not mean that they do not intend to prosecute Mr. Alabi. A failure to respond to requests about whether Mr. Alabi’s testimony is necessary in the other trial does not support an inference that the extradition application is brought for an improper purpose.

[8] I therefore reject this argument for lack of an evidentiary foundation.

[9] With respect to the second argument advanced, it is acknowledged by both parties that Mr. Alabi assisted the American authorities in their investigation of associates of Mr. Alabi, including by having them discuss their criminal acts while he was wearing a wire. It is also agreed that his role was that of a police agent, not a confidential informant. As such, there can be no guarantee that his identity would never become known to the subjects of the investigation. See R. v. Barros, 2011 SCC 51.

[10] It is not necessary for me to make factual findings about any promises that were or were not made to Mr. Alabi by police officers in the United States when Mr. Alabi undertook this role as police agent. Likewise, although there is nothing to corroborate Mr. Alabi’s account of being threatened and beaten as a result of his cooperation with the police, it is not necessary for me to make a finding as to whether these things actually happened. For purposes of the application before me, I am prepared to accept that Mr. Alabi received threats.

[11] Mr. Alabi testified that he reported to the police that he had received threats and a beating and that he was in fear for his life. He said the police refused to do anything to assist him, which is why he fled the United States and sought refugee status in Canada. According to the responding material filed in this application, the authorities in the United States report that Mr. Alabi did not tell them anything at all about threats to his safety. If Mr. Alabi is in fact a crucial witness to the prosecution case against the individuals charged as a result of the investigation in which he was a police agent, as he alleges, it is hard to believe that the police would not do something to ensure his safety was protected. I am not satisfied on a balance of probabilities that Mr. Alabi communicated these fears to the police in the United States before he fled to Canada.

[12] However, even if Mr. Alabi did communicate with the police and ask for protection, it does not necessarily follow that upon being returned to the United States he will be attacked and/or killed by criminal elements who believe him to be a snitch. The United States is a treaty partner with Canada based largely on shared respect for each other’s legal systems. The United States provides constitutional guarantees of the right to life, liberty and security of the person. There is no basis for me to assume that American authorities will fail to provide any protection to Mr. Alabi if he is returned to face charges there, even if I did believe all of his allegations as to what happened between August 5, 2020 (when the police executed a search warrant at his home) and December 7, 2020 (when he illegally entered Canada).

[13] Further, it is open to Mr. Alabi to raise with the courts in the United States that he was lied to or mistreated by the American authorities or that he was coerced to participate in a criminal investigation against other individuals to the detriment of his own life and safety. In addition, any concerns about his safety can be addressed at the Ministerial stage prior to Mr. Alabi’s surrender, perhaps by seeking assurances of protection. Either way, there are remedies available to Mr. Alabi if his accusations are accepted. The availability of such alternative remedies is a bar to a stay of proceedings. See R. v. Babos, 2014 SCC 16 at para. 32.

[14] In addition, a stay of proceedings in this case is not warranted because the abuses alleged by Mr. Alabi do not reach into the extradition process itself. All these allegations relate to the alleged conduct of American authorities at a time after the dates relating to the commission of the offences alleged. As such there is no nexus between the allegations of abuse of process and the fairness of the extradition proceeding itself. See U.S.A. v. Lane, 2014 ONCA 506, leave to appeal to S.C.C. ref’d: [2014] S.C.C.A. No. 425. For that reason, the decision of the Supreme Court of Canada in U.S.A. v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587 is distinguishable on its facts.

[15] Finally, this is not the kind of situation where ordering extradition would be contrary to the interests of justice. It is only in the “clearest of cases” that a stay would be granted on this basis. Any violation of Mr. Alabi’s rights did not occur in this jurisdiction, nor does it relate to our judicial system, nor do any rights available under our Charter of Rights and Freedoms arise. A stay is not required to protect the integrity of the Canadian justice system and it is not the place of this court to denounce misconduct of police officers in the United States, even if I was able to conclude that there was such misconduct. In the weighing of interests I am required to carry out in considering a stay in this residual category, I am unable to assess the nature of any misconduct in terms of whether it is systemic or isolated. In my view, on the basis of the information before me, the scales are tipped towards returning Mr. Alabi to the United States where there can be a trial on its merits and where he is free to raise any allegations he wishes with respect to the conduct of the American authorities. See Babos; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.

[16] The applicant has failed to meet the test for a stay of proceedings on any of the grounds available. Accordingly, the application is dismissed.

The Test for Extradition Is Met

[17] Counsel for Mr. Alabi raised no issues with respect to the merits of the extradition itself.

[18] Based on the material filed, I am satisfied that the person before the court here is in fact the person sought by the United States to stand trial on charges there. Further, I am satisfied that the conduct underlying the criminal charges there would also be criminal offences under the Criminal Code of Canada, specifically possession of property obtained by crime (s. 354(1)(a)) and unauthorized use of credit card data (s. 342(3)).

[19] My role in determining whether to issue an Order for Committal under the Extradition Act is a limited one, and is similar to the test applied at a preliminary hearing in determining whether there is sufficient evidence to commit an accused for trial. There is no basis in this case to challenge the reliability of the anticipated evidence set out in the Revised Record of the Case. See U.S.A. v. Ferras, 2006 SCC 33; M.M. v. U.S.A., 2015 SCC 62. Based on that material, I am satisfied that there is sufficient evidence to constitute a prima facie case on the charges upon which extradition is sought. See R. v. Dynar, [1997] 2 S.C.R. 642; U.S.A. v. Thomlison, 2007 ONCA 42, 216 C.C.C. (3d) 97 (O.C.A.), leave to appeal to the S.C.C. ref’d, [2007] S.C.C.A. 179. The Crown has satisfied all of the elements to justify issuing an order of committal. That order was signed by me on April 7, 2022.

MOLLOY J. Date: April 8, 2022