Court File and Parties

COURT FILE NO.: CR-23-213-MO/ CR-23-214-MO/ CR-23-215-MO DATE: 2024-10-31 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA K. Aird, for the Respondent

- and -

Timothy Balogun, Rachel O’Connor Adeyanju Olaniyan, S. Fishbayn, for the Applicants O’Connor and Balogun

HEARD: September 13, 2024

AMENDED EXTRADITION DISCLOSURE MOTION RULING

MIRZA J.

BACKGROUND

[1] The Applicants, O’Connor and Balogun, bring a motion for disclosure in relation to this application for extradition where the United States of America (US) is the requesting state.

[2] The Minister of Justice has issued an authority to proceed (ATP) pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18, which authorizes the Attorney General of Canada (AGC) to seek an order for Balogun, O’Connor and Olaniyan’s committal for extradition for prosecution on the basis of the Canadian offence of fraud contrary to s. 380(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] A certified Record of the Case (ROC) and a Supplementary Record of the Case (SROC) allege that Balogun, O’Connor, and Olaniyan, were involved in a conspiracy to acquire through fraud medical supplies from medical supply distributors and their client pharmacies.

[4] Since 2021, the Federal Bureau of Investigation (FBI) and the U.S. Food and Drug Administration (FDA) have been investigating a conspiracy to steal medical supplies from medical supply distributors and their client pharmacies.

[5] The US authorities in the State of Arkansas allege that the Applicants and Olaniyan were using a call “spoofing” program from BSD Telecom to deceive pharmacies across the US into disclosing sensitive distributor account information.

[6] A “Bluff My Call” customer can subscribe to certain Personal Identification Numbers (PINs) used to access the service. Once logged in, a user can place a phone call and input the data that appears on the call recipient’s caller identification service, disguising themselves as a different caller. For example, a conspirator could use his own telephone number to make a call and, after inputting his PIN, would be able to enter the number of Company 1. The recipient of the call would see that the call came from Company 1.

[7] It is alleged that the Applicants participated in a scheme that deliberately deceived pharmacies by fraudulently posing as suppliers of medical equipment, including diabetic test strips. They would fraudulently obtain account information from pharmacies and then use that information to fraudulently order medical supplies from the pharmacies’ distributors, including Company 1, Company 2, and Company 3.

[8] The ROC alleges that the participants in the scheme placed orders for supplies, diverted the supplies, and sold them at a profit. Once these distributors shipped the medical supplies, Balogun, O’Connor and Olaniyan would again contact the victim pharmacies under the guise of being representatives of the distributors and tell the pharmacies that medical products were shipped in error, but would be collected by the distributors via courier, and that the pharmacy’s account would be reimbursed. However, contrary to their purported representations it is alleged that Balogun, O’Connor and Olaniyan diverted the supplies and resold them for profit.

[9] It is alleged that many pharmacies and distributors across the US have suffered losses. It is expected that co-conspirators and witnesses investigated in the US will give evidence to establish that the Applicants moved the proceeds of the fraud to bank accounts located in Canada.

[10] The ROC indicates that the US investigation acquired financial records, internet protocol (IP) data, voice recordings, telecom service records for “spoof” calls, and information from co-operating witnesses.

[11] Some of the other materials gathered were based on co-operation with the Toronto Police Service (TPS), which obtained warrants for the production of records held by Canadian companies such as banks and telecom services.

[12] On June 7, 2023, the Applicants and Olaniyan were arrested on an Extradition warrant, issued by the State of Arkansas. The offences were alleged to have been committed between July 1, 2021, and May 31, 2022.

[13] The Applicants materials indicate that Balogun was charged with committing offences including Conspiracy to Commit Wire and Mail Fraud, Mail Fraud, Aiding and Abetting.

[14] O’Connor has been charged with Conspiracy to Commit Wire and Mail Fraud, Mail Fraud and Wire Fraud, Aiding and Abetting.

[15] Olaniyan has also been charged with various offences.

[16] The Applicants did not call any evidence at this disclosure motion.

ROC and SROC

[17] The ROC, dated July 20, 2023, has been certified by an Assistant US Attorney for the Western District of Arkansas as being available for trial and sufficient under US laws to justify prosecution in accordance with s. 33(3)(a) of the Extradition Act.

[18] The Applicants sought additional disclosure in writing on December 13, 2023. On December 19, 2023, the Respondent refused additional disclosure.

[19] On March 27, 2024, the Assistant US Attorney provided the AGC with a Supplemental Record of the Case (SROC). The SROC was disclosed to the Applicants late in the day of March 27, 2024. As a result of the late filing of the SROC, the hearing of this Application was adjourned to be heard on September 13, 2024.

Canadian Investigation

[20] Detective Constable (DC) Williams of the TPS obtained numerous search authorizations to obtain records associated with Balogun, O’Connor and Olaniyan, including bank account information from Toronto Dominion Bank (TD), Canadian Imperial Bank of Commerce (CIBC), the Royal Bank of Canada (RBC), and the Bank of Montreal (BMO) pertaining to each defendant, along with telecommunications records from Telus Communications (Telus) and Rogers Communications (Rogers). These records were shared with the US authorities, who analyzed them with other US gathered evidence to establish evidentiary connections to the Applicants.

[21] DC Williams obtained from BMO a recorded call allegedly between O’Connor and the bank’s customer service employee, wherein O’Connor identifies herself by name, debit card number, and email address. According to para. 55 of the ROC, during the call, O’Connor is heard talking on another phone, in which she identifies herself as an employee of the “Board of Pharmacy” seeking information about the call recipient’s primary supplier of diabetic test trips.

[22] DC Williams also obtained from TD a recorded call where, according to the ROC at para. 57, Balogun gave the phone number (437) 240-9293 as a contact number for several RBC and CIBC banks accounts for a company called “Diabetic Inventory Management.”

[23] According to the ROC, these Canadian bank call recordings are used by the US investigators, FBI special agents (SA), as baseline comparators with recordings of calls obtained in the US from the “spoofing service” to formulate opinions about nationalities and distinctive voices of the callers. They are relied upon to voice identify the Applicants. For example, para. 27 of the ROC states:

27. SA Camp is expected to testify that he reviewed a representative sample of the calls and noticed that the voices in many of these calls are the same woman with a distinct Canadian accent and a man with a distinct Nigerian accent, making calls consistent with the scheme. [Emphasis added]

[24] Paragraphs 54 and following of the ROC explain the correlations made by the investigators, relying on what they say are distinctive voices and self-identifiers that match with other records:

54. SA Camp is expected to testify that Bluff My Call toll records demonstrate that the number (416) 300-9647 was used many times in a manner consistent with the scheme, i.e., frequently used to call pharmacies around the United States disguised as various state licensing agencies.

55. SA Camp is expected to testify that Bluff My Call recordings obtained pursuant to a search warrant demonstrate that a woman with O’CONNOR’s distinctive voice, as heard on the tape obtained from the Bank of Montreal, used (416) 300-9647 to call pharmacies under the guise of a distributor to dupe the pharmacist out of his/her Company-1 and Company-2 account data.

56. Detective Williams is further expected to testify that BALOGUN identified the number (437) 240-9293 as a contact number on banks accounts for a company called “Diabetic Inventory Management” including Royal Bank of Canada bank accounts 1022441, 1022458, and 4001814, and CIBC accounts 1016903, 1017004, and 0203319. Additional recorded calls between BALOGUN and bank employees obtained by the Toronto Police Service pursuant to legal process capture BALOGUN identifying himself by name and the 9293 phone number to bank employees.

57. SA Camp is also expected to testify that recordings obtained from Bluff My Call pursuant to a search warrant confirm that BALOGUN, as identified by his voice, used the number (437) 240-9293 consistent with the scheme. For example, on October 29, 2021 (shortly after the Heartland fraud) BALOGUN calls FedEx, using the alias “Paul” seeking to ship a package.

58. Bluff My Call toll records show that the number (437) 240-9293 was used on the platform more than 1000 times, many of which appear consistent with the scheme, i.e., calls placed to and from pharmacies and distributors under the guise of licensing boards, pharmacies, and distributors. In addition, recorded calls on this number reveal that O’CONNOR also used this number at various times, as identified by her voice. For example, on June 21, 2021, O’CONNOR calls Company-1 under the identity of Price Chopper Pharmacy in Wilkes-Barre Township, Pennsylvania using (437) 240-9293.

SA Camp is expected to testify that on or about the same dates that the above numbers contacted Heartland Pharmacy in Gentry, Arkansas to perpetrate the fraud, callers using the same numbers contacted Heartland Pharmacy in Fayetteville, Arkansas.

[25] The SROC states at paras. 6 and 7:

6. Paragraph 59 of the ROC should be supplemented to include the following information regarding the identification of the voice of Rachel O'Connor:

"SA West is also expected to testify that he used the following information to identify Rachel O'Connor as having used the number (437) 240-9293. Both SA Camp and SA West listened to numerous calls recorded by BSD Telecom originating from (437) 240-9293, and listened to other instances of O'CONNOR's voice, including the call set out in paragraph 55 of the ROC. Both SA Camp and SA West listened to the calls numerous times and in sequence. Based on the voice (including O'CONNOR's unique accent) cadence, and manner of speaking, both SA Camp and SA West believe the voices in the recordings belong to the same person." [Emphasis added]

7. Paragraph 60 of the ROC should be supplemented to include the following information regarding the identification of the voice of Timothy Balogun:

"SA West is expected to testify that he used the following information to identify BALOGUN's voice using telephone number (249) 733-2268. Both SA Camp and SA West listened to numerous calls obtained from BSD Telecom originating from number (249) 733-2268 as well as other calls containing Balogun's voice, including the one set out in paragraph 57 of the ROC. Both SA Camp and SA West listened to the recorded calls numerous times and sequentially. Based on the voice (including Balogun's unique accent), his cadence and manner of speaking, both SA Camp and SA West believe the voice on the recordings is that of Balogun." [Emphasis added]

DISCLOSURE REQUESTED

[26] The Applicants seek disclosure of items relevant to identification that fall into three primary categories: Voice Identification; Individual 1; and Josue Rivera.

Voice Identification Materials

[27] The ROC explains that SA Camp and SA West conducted an analysis of a collection of records including spoofing calls, audio recordings, PayPal records, BSD Telecomm records, Rogers communication, and bank records to identify the Applicants.

[28] In the initial ROC at para. 27, Balogun’s voice was identified, in part, because of the US authorities’ opinion that Balogun has a distinct Nigerian accent. O’Connor’s voice was also identified by the police, in part because of her distinct Canadian accent.

[29] This evidence is challenged in the Applicants’ Factum as police opinion evidence that is manifestly unreliable and presumptively inadmissible under Canadian law.

[30] The SROC, at paras. 3-7, further explains the basis for the police voice recognition. SA West advises that the police also base their identification of both O’Connor and Balogun on a comparison of voice, intonation, unique cadence, similarities in phrasing, and manner of speaking.

[31] The Applicants submit that the meaning of terms such as intonation, cadence etc. used by the US authorities are not sufficiently explained and that examples are not provided. Further, the Applicants submit that these terms are designed to convey the appearance of details but are really meaningless.

[32] The Applicants submit that the voice recognition evidence is not only manifestly unreliable, but the conclusions about nationality are also offensive to the values inherent in s. 15 of the Canadian Charter of Rights and Freedoms.

[33] It is not disputed that the audio recordings collected by DC Williams from two Canadian banks, BMO and TD, are pursuant to judicial authorizations obtained in Ontario, Canada, and then subsequently shared with the FBI.

[34] These two recordings are used by the US authorities as a baseline comparator for the recordings of calls they obtained in the US.

Individual No. 1

[35] The ROC indicates that Individual 1 lives in Florida and operates a company that sells medical supplies including diabetic test strips. Individual 1 received a surveilled and tracked package in January 2021 after arranging for its delivery from a contact that they knew as “John” and “Dream,” with whom they had been doing business for some months. “John” is alleged to be Olaniyan.

[36] Individual 1 provided law enforcement with an invoice they obtained from “DTS Management” requesting payment for $24,388 for diabetic supplies sent on or about October 21, 2020, to be sent to “Timothy Balogun” at an address in Mississauga, Ontario.

[37] In para. 5 of the SROC, US authorities state that Individual 1 recorded a video call with Balogun on December 1, 2022. Further, that Individual 1 is willing to testify that the person on this video is consistent with the person depicted in Exhibit “A” of the ROC, namely Balogun.

[38] Individual 1 states that the voice of the person on the video call is the same voice heard on their other calls with Balogun.

[39] SA Camp is expected to testify that, based on financial analysis, resellers like Individual 1, who received medical supplies, sent wire transfers as payment for the products. It is alleged that according to a review of bank records, Individual 1 sent more than $720,000 over the course of three years to Olaniyan for the purchase of medical supplies.

[40] SA Camp is also expected to testify that Individual 1 sent more than $120,000, over the course of four months to a TD account that belongs to Balogun.

Josue Rivera

[41] The SROC states that Josue Rivera was interviewed and would testify to purchasing stolen supplies from an individual he knew to reside in Canada from at least 2021 until March 2023. The ROC explains that analysis of bank records demonstrate that Josue Rivera sent payment to Balogun’s CIBC account from his Bank of America account between June 2021 to October 2021 for substantial sums.

[42] According to the SROC, at para. 5, Rivera provided recorded voice messages from his phone with the person from whom he purchased the stolen supplies. SA West reviewed the recording, and based on the comparison of voice, intonation, cadence, topics discussed, and manner of speaking, believes the voice is consistent with the recorded BSD calls and recorded bank calls made by Balogun.

[43] After the SROC was filed, the Applicants updated their disclosure request. In summary, they now request disclosure of the following items:

1. Voice recognition of Balogun and O’Connor. a) copy of the voice recording of the ‘baseline’ call purported to be from O’Connor made to the Bank of Montreal; with the date and time of this call; b) The other recordings obtained in the U.S. which are alleged to be similar to or “consistent” with the voice on this call; c) Whether SA Camp, SA West, DC Williams have ever given court evidence of voice recognition in any previous cases, and if so where it was accepted by the court; d) Any specialized training or education SA Camp, SA West, or DC Williams have undertaken in the area of voice recognition; e) Detailed, specific examples of what is meant in the SROC of the terms: “intonation”, “cadence”, “similarities in phrasing”, “uniqueness of accent”, and “manner of speaking”. f) Similarly, the Applicants request the baseline TD Bank recording relating to Balogun, as well as the related items listed above.

2. The Applicants seek disclosure in relation to information provided by or known by Individual 1: a) In particular, Individual 1’s description of the image as “consistent” be clarified to explain how it was “consistent”, and not identical; and if there were aspects of the image which were not identified; b) Information as to whether the Individual 1 conducted any legal trade or business in medical supplies; c) Mr. Balogun’s cell phone and its contents seized upon his arrest by DC Williams in Canada to demonstrate that there is no matching record of such a video call being made on the Applicant’s phone.

3. The Applicant seeks disclosure in relation to witness, Josue Rivera. a) The reasons this witness was or was not able to identify Balogun; and b) SA West’s reasons to conclude that Rivera’s recordings were consistent with the voice of Balogun.

THE LAW

ESSENTIAL PRINCIPLES

[44] The test for committal for prosecution is set out in s. 29 of the Extradition Act, which reads:

29. (1) A judge shall order the committal of the person into custody to await surrender if (a) in the case of a person sought for prosecution, 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 that the person is the person sought by the extradition partner.

[45] The requesting state is only obligated to show that the record would justify committal for trial in Canada. The committal for trial process is not concerned with possible defences on which the accused bears an evidentiary or persuasive burden: M.M. v. USA, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 66.

[46] In USA v Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, at paras. 53-54, the Supreme Court of Canada held that the extradition judge may engage in a limited weighing of evidence to exclude evidence that is manifestly unreliable.

[47] In France v Diab, 2014 ONCA 374, 120 O.R. (3d) 174, at para. 134, leave dismissed [2014] S.C.C.A. No. 317, the Ontario Court of Appeal affirmed that, in light of Ferras, the test for committal is made out where the following test is met:

[134] In our view, the "dangerous or unsafe to convict" consideration in Ferras is addressed by the exclusion of evidence that is manifestly unreliable. The test for committal is made out where (1) evidence that is manifestly unreliable, and on which it would therefore be dangerous or unsafe to convict, is excluded; and (2) there remains evidence available for trial that possesses indicia of threshold reliability on each essential element of the corresponding Canadian offence, upon which a reasonable jury properly instructed could convict.

[48] In M.M. at para. 72, Justice Cromwell adopted the following words of Justice Doherty in USA v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380, at para. 30:

[30] Evidence may be rendered "so defective" or "so unreliable" as to warrant disregarding it due to problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors. I would stress, however, that 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.

[49] In keeping with the restricted function of the judge at the committal phase, the Supreme Court in M.M. at para. 64, (quoting USA v. Dynar, [1997] 2 S.C.R. 462, 33 O.R. (3d) 478, at para. 122) that extradition judges must guard against allowing extradition hearings to become trials:

[64] While the role of the extradition judge in scrutinizing evidence has been somewhat enhanced to ensure Charter compliance, it remains the case that an extradition hearing is not a trial and it should never be permitted to become one: Schmidt, at p. 515. The process is intended to be expeditious and efficient so as to “ensure prompt compliance with Canada’s international obligations.”

DISCLOSURE AT EXTRADITION HEARINGS

[50] In Dynar, at para. 134, the Supreme Court held that a person sought for extradition is only entitled to disclosure of materials on which the requesting state relies to establish a prima facie case to justify committal:

The Requesting State concedes that the fugitive is entitled to know the case against him. See United States of America v. Whitley (1994), 94 C.C.C. (3d) 99 (Ont. C.A.), aff’d, [1996] 1 S.C.R. 467. In light of the purpose of the hearing, however, this would simply entitle him to disclosure of materials on which the Requesting State is relying to establish its prima facie case. [1]

[51] Certification of evidence as set out in s. 33(3)(a) [of the Extradition Act] raises a presumption that the evidence in a record of the case (ROC) is reliable. This follows from the principles of comity between Canada and the requesting state. Certification, as discussed above, is the indicium of reliability that Parliament has prescribed for evidence in these circumstances. Unless challenged, certification establishes reliability: Ferras, at para. 52.

[52] The onus is on the person sought, when seeking further disclosure, to show an air of reality to a Charter allegation and its relevance to an issue within the context of the extradition committal process or issues properly raised at the extradition hearing: United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, at para. 29.

[53] The Supreme Court indicated in United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 that the extradition judge has the discretion to hear, and order disclosure of, evidence at an extradition hearing in order to build a case for consideration of the Minister at the Ministerial phase of the extradition process.

[54] On this point however, the Supreme Court in Kwok, at paras. 74 and 100-102, noted that the exercise of such discretion “would only be exercised for reasons of convenience,” “on efficiency grounds,” “when the issues relevant to the committal are intertwined with the factual basis upon which the Charter challenge will subsequently be based,” and “when the allegations hold an air of reality”:

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.

101 In this case, the appellant was entitled to know the case against him, including the materials upon which the United States relied upon to establish a prima facie case. Since the Requesting State was not relying upon materials in the possession of Canadian authorities, and in the absence of any indication of bad faith or improper motives on the part of prosecuting authorities, there was no obligation to provide further disclosure of materials requested.

102 The substance of the discussions between the U.S. and Canada regarding a decision to prosecute may have been relevant, at most, to a possible future breach of s. 6; a breach that would occur, if at all, at the surrender stage of the process. As I indicated earlier in these reasons, I would not preclude altogether the exercise of a residual discretion of the part of the extradition judge to allow evidence on some of these issues in a proper case, and to order disclosure accordingly. That discretion would only be exercised for reasons of convenience, in an effort to expedite further the full disposition of the issues. There was no need to resort to it in the present case.

[55] In general, domestic disclosure obligations do not extend to foreign jurisdictions: Germany v. Schreiber, [2000] O.J. No. 2618 (Ont. S.C.) at paras. 86 and 89.

[56] In R v Lexier, 2018 ONCA 126, [2018] O.J. No. 1313, Lexier appealed the extradition judge’s refusal to compel American authorities to disclose the identities of anonymous witnesses. The Ontario Court of Appeal dismissed the appeal on the basis of a lack of jurisdiction holding at para. 8:

[8] The committal judge lacked the jurisdiction to require the foreign state to disclose the names of the witnesses: U.S.A. v. Khadr, [2007] O.J. No 3140 (S.C.), at para. 51; U.S.A. v. Su Go, [2008] O.J. No. 3012, at para. 22 (S.C.). Nor was there an air of reality to the appellant’s assertion that the witnesses could have recanted. The main cooperating witnesses pleaded guilty to charges relating to the scheme. We are not satisfied that any unfairness to the appellant resulted in this case.

[57] An exception to this rule potentially exists where there is an air of reality that the requesting state has engaged in an abuse of process in the investigation that would undermine the integrity of the extradition proceedings in Canada. In this context, if the requesting state does not comply with a disclosure order, that denial could jeopardize procedural fairness or be an abuse warranting a stay: United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at paras. 43-48; United States of America v Tollman, [2006] O.J. No. 5588 (Ont. S.C.).

[58] The test for additional disclosure in furtherance of alleged state misconduct before the extradition judge was stated by Doherty J.A. in R. v. Larosa, (2002), 166 C.C.C. (3d) 449 (Ont. C.A.), 163 O.A.C. 108, at paras. 76-82:

[76] In my view, before ordering the production of documents and compelling testimony in support of allegations of state misconduct, this court should be satisfied that the following three criteria have been met by the applicant:

• The allegations must be capable of supporting the remedy sought;
• There must be an air of reality to the allegations; and
• It must be likely that the documents sought and the testimony sought would be relevant to the allegations.

[77] The first criterion is self-evident. There is no point in engaging in a lengthy evidentiary inquiry where it cannot in law yield the result sought by the appellant. For example, one of the allegations in the notice of motion claims that the Crown misled the criminal court as to the status of Pagano. Even if this allegation were true, I fail to see how it could offer any support for a stay of the extradition proceedings.

[78] The “air of reality” requirement comes from R. v. Kwok, supra, at 267-69. An “air of reality” means some realistic possibility that the allegations can be substantiated if the orders requested are made. For example, one of the appellant’s allegations relates to the alleged manipulation of the criminal process by the Crown so as to maintain its unfettered ability to stay the criminal proceedings should it decide to extradite the appellant. There is no “air of reality” to this allegation because, as explained above, the Attorney General maintained the unfettered authority to stay the criminal proceedings regardless of whether the matter was at trial or not. There is no need for the Crown to manipulate the process to maintain its power to stay at a criminal proceeding. There could only be an “air of reality” to this allegation if the Minister of Justice was under the same misapprehension as to the scope of the Crown’s power to stay criminal proceedings as was counsel for the appellant. There is nothing to suggest that she did not understand the Crown’s power to stay criminal proceedings.…

[82] The final requirement, that the appellant demonstrate that the documents and testimony sought are likely to yield evidence relevant to the allegations, is consistent with the conditions precedent to the issuing of a subpoena in a criminal proceeding: Criminal Code, s. 698(1).

[59] It is clear that the party seeking additional disclosure bears the burden of demonstrating an “air of reality” by reference to evidence put before the court: Larosa, at para. 81.

[60] The “air of reality test” applies to allegations that disclosure would challenge the threshold reliability of the ROC and SROC: USA v. Norbu, 2020 ONSC 5389, 152 O.R. (3d) 343; R v Rosenau, 2010 BCCA 461, 262 C.C.C. (3d) 515, at para 55; USA v. Guevara-Mendoza, 2018 BCCA 55, [2018] B.C.J. No. 249; USA v. Orphanou, 2010 ONSC 1701, [2010] O.J. No. 1156; USA v. Su Go, [2008] O.J. No. 3012 (S.C.), 175 CRR (2d) 335.

CHARTER ISSUES

[61] As noted above, in Kwok, at paras. 100-102, the Supreme Court explained that a judge may order disclosure of material where the person sought is able to demonstrate, at least, an air of reality to a Charter breach relevant to committal:

[62] In Anekwu, the Supreme Court held that a properly grounded Charter breach allegation seeking exclusion of evidence gathered in Canada could justify a disclosure order:

[29] Likewise, 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 Extradition Act, is 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. 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 (United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 130; Kwok, at para. 100), the onus should be on the requesting state to prove that the evidence is justifiably 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.

[30] In short, I conclude that a flexible approach that does not insist that evidence take a particular form, but that still ensures that the person sought may challenge the admissibility of evidence under the Charter, or its content according to Canadian evidentiary rules, is more consistent with the purpose of the extradition hearing. As Moldaver J.A. succinctly put it in McDowell (at paras. 22-23):

. . . there is good reason for Canada to insist that evidence gathered in Canada conform substantively with our rules of evidence. Such a rule does not place an onerous burden on the requesting partner. It does, however, preserve the integrity of our justice system by affording fugitives the protection of our laws and values while they remain in Canada. In that way, the Act provides a front‑line check on the methods used by both foreign and domestic law enforcement agencies to collect evidence in Canada.

Insisting that evidence gathered in Canada comply substantively with our rules of evidence is one thing; insisting that it take a certain form is quite another. The latter does nothing to preserve or protect the integrity of our justice system and it creates a barrier to the prompt and efficient discharge of our international obligations.

[31] I would add that, in an appropriate case, the extradition judge may require the attendance of any witness for examination or cross-examination. Section 24(2) of the Extradition Act gives the extradition judge the same powers as a preliminary inquiry judge in a domestic proceeding....

[63] In USA v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449, the Court of Appeal explained the division of powers and jurisdiction of a judge in an extradition case where Charter breaches were argued:

[40] The division of responsibility between the Minister and the courts in relation to the application of the Charter and the common law jurisdiction to grant a stay of proceedings was dealt with in United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, [2001] S.C.J. No. 20 and United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, [2001] S.C.J. No. 19. Those cases hold that Charter issues which by their very nature arise only at the surrender stage -- the s. 6 Charter right to remain in Canada and the s. 12 Charter right not to be subjected to cruel and unusual treatment or punishment -- fall within the jurisdiction of the Minister, not the extradition judge. Cobb also holds that issues which by their very nature pertain to the committal stage -- including the court's common law power to stay proceedings on grounds of abuse of process in order to protect the court's integrity -- fall within the jurisdiction of the extradition judge, not the Minister.

[41] Cobb and its companion case, United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, [2001] S.C.J. No. 18, hold that the extradition judge has the discretion to grant a stay on grounds of abuse of process where making a committal order would taint the integrity of the court due to the requesting state's conduct. Of particular importance to this appeal is the statement of Arbour J., writing for the court in Cobb, at paras. 44 and 48, rejecting the argument that it was for the Minister alone to deal with complaints regarding the requesting state's conduct at the surrender stage:

44. These concerns, and the remedies to which they give rise, properly belong to the judicial phase of the extradition process as they are not dependent on the ultimate outcome of either the committal or the surrender decision. Nothing the Minister could have done would address the unfairness which would taint a committal order obtained under the present circumstances. The Minister is not the guardian of the integrity of the courts. It is for the courts themselves to guard and preserve their integrity. This is therefore not a case that must await the executive decision. The violations of the appellants' rights occurred at the judicial stage of the process and call for redress at that stage and in that forum. [page464] . . . . .

45. As I indicated before, the existence of potential remedies at the executive stage does not oust the jurisdiction of the courts to control their own process in cases such as here, where the courts are required to preserve the integrity of their own proceedings.

POSITIONS

[64] The Applicants submit that the extradition judge should order disclosure where the evidence is necessary to understand the case to meet, to show the evidence is manifestly unreliable, and where there is an air of reality to allegations that Canadian evidence was obtained contrary to the Charter.

[65] They submit that when the ROC and SROC relies upon manifestly unreliable evidence, such as evidence based on speculation or surmise, it will raise concerns sufficient to undermine the admission of the evidence.

[66] Similarly, they submit that where the ROC depends on mere bald assertions which deprive the reviewing court of the ability to independently assess the sufficiency of the evidence, the Court has the power to order disclosure of the evidence which underpins the assertions. Evidence that amounts to nothing more than police officers’ opinions that the person sought is guilty of the offence, is not capable of supporting a reasonable inference, unless the foundations of the opinion are detailed and made available for independent assessment by the Court.

[67] The Applicants submit that the ROC in this case blends together sources of evidence without sufficient delineation of those sources.

[68] As a result of the silence of the ROC on these issues, the Applicants contend that they are not only deprived of their right to challenge the threshold reliability of the evidence against them, but the Court is deprived of the ability to independently assess the sufficiency of the evidence.

[69] The Respondent submits that the Applicants have failed to make out an air of reality that the ROC and SROC are manifestly unreliable or that there is a Charter breach. The Applicants provide no evidentiary basis demonstrating a realistic possibility of such allegations. Rather, the Applicants simply assert that they want the disclosure to assess the possibility of making out a Charter breach or showing that evidence in the ROC is manifestly unreliable.

[70] The fact that the requesting state may have in its possession evidence that was gathered in Canada does not in itself create disclosure obligations in relation to those materials.

ANALYSIS

Individual 1 and Josue Rivera

[71] I am able to decide a large part of the disclosure motion on the basis of an absence of jurisdiction.

[72] Based on the Applicants record, and nature of arguments advanced, I find that this court does not have jurisdiction to order the disclosure of items that are clearly obtained in the US or generated by US investigators. This includes their investigative interviews, notes, and analysis conducted in the US in relation to Individual 1 and Josue Rivera.

[73] The Applicant conceded that except for the two bank audio recordings and data from his cellphone which were obtained pursuant to judicial authorizations in Canada, all of the other items requested pertain to information gathered and prepared by the FBI in the US.

[74] In Germany v. Schreiber, Mr. Schreiber sought disclosure of various materials in the possession of German authorities. Justice Watt concluded that in the normal course of extradition proceedings, the court is unable to order the disclosure of material in the possession of the requesting state:

89 The Record of the Case has been disclosed to the Applicant. It is quite detailed and identifies the source of the material on which its numerous statements of fact are said to be based. There is no warrant in the Act or treaty to require disclosure of the primary materials in the custody of authorities in the Federal Republic. At all events, such an order would not be enforceable. Domestic disclosure commands do not extend to foreign jurisdictions.

[75] In USA v Khadr, [2007] O.J. No. 3140 (S.C.), at para. 51, Justice Speyer followed Schreiber and held that there is no jurisdiction to order the disclosure of material in the possession and control of American authorities: “An order commanding foreign production of all documents in this regard impinges upon the sovereignty or a foreign state.” See also the Court of Appeal’s support for this principle in Lexier, at para 8. citing Khadr (2007), at para. 51, and Su Go, at para. 22.

[76] The Applicants were unable to point to any contrary authority that gives this court jurisdiction to order the requesting state to provide disclosure of materials they generated in the US because the Applicant wants more clarity or descriptive information to challenge the admissibility or reliability of the evidence.

[77] The Applicants do not argue that the disclosure pertains to allegations that the requesting state alone or in conjunction with the Canadian authorities has engaged in conduct that violates the integrity of the extradition proceedings.

[78] The Applicant is not alleging an abuse of process or violation of the integrity of the Canadian judicial process such as in Tollman or Cobb. The Applicants have not reasonably advanced a foundation that supports that there are concerns about protecting the integrity of this proceeding from an abuse of process: see also Khadr (2007). There is no air of reality to an allegation of abuse of process or other misconduct that is an affront to the integrity of the judicial or Ministerial review process in Canada.

[79] In Tollman, the court found that the evidence supported the Applicant’s contention that the US deliberately set out to thwart the Canadian extradition process and to deny him the protections afforded to him under Canadian legislation. Tollman successfully applied for a stay of proceedings, alleging false evidence was deliberately placed before the Court to obtain extradition. Justice Molloy, at paras. 61-63, examined the authority of the Court to order disclosure from the state seeking extradition. In the context of an abuse of process motion, Justice Molloy concluded that if the three pronged test in Larosa was met in that specific context, there was jurisdiction to order production.

[80] In Cobb, at para. 49, the Supreme Court held that due to the alleged egregious US prosecutorial misconduct, including threats of the disturbing and illegal consequences that may follow if extradition was resisted, the Canadian court had authority to protect against an abuse of process under the common law or s. 7 of the Charter:

[81] I recognize that the Applicants in this case have raised the prospect of a s. 15 Charter violation concerning the voice recognition opinions by US officers. However, this argument is not properly advanced. For example, there is no discussion about how s. 15 would apply to the US officers’ investigation and analysis. The purported Charter breach is raised in a single sentence in their materials. Counsel for the Applicant acknowledged this reality when questioned during submissions.

[82] I do not agree that because the requesting state relies on Canadian source material such as the bank audio recordings as an important piece for comparison to form their opinions on voice identification, (even should this opinion be shown to be manifestly unreliable), that on this record, this court has authority to order the requesting state to produce the fruits of their own investigation. The disclosure items sought include the audio obtained by the FBI from “Bluff my call” by BSD Telecom in the US, to compare against the Canadian bank recordings, and disclosure requiring the FBI agents to better explain how the police came to their conclusions about intonation or cadence etc.

[83] Similarly, based on the Applicants motion record, this court is not authorized to order disclosure of information collected by the FBI or affiliated investigators from witnesses or accomplices interviewed in the U.S.

[84] Further, this court does not have jurisdiction to direct the US authorities to provide additional explanations or take investigative steps to get that information. I also observe that SA Camp’s credentials are stated at para. 1 of ROC, and SA West’s are stated at para. 1 of the SROC, even if they do not describe whether they have had voice identification training.

[85] As a result, the Applicants updated disclosure request for all of the materials that are obtained or generated by US authorities in the US is dismissed for lack of jurisdiction.

ITEMS OBTAINED IN CANADA

Bank Audio Recordings

[86] The disclosure regarding the Canadian bank audio recordings as the baseline comparator calls is differently situated legally than the other items.

[87] First, I am satisfied that this court has jurisdiction in relation to those items as they are the result of judicial authorizations obtained in Ontario. [2]

[88] Second, I am satisfied that the Applicants have met the test for disclosure for the two audio calls obtained by DC Williams from TD and BMO banks pursuant to judicial authorization.

[89] The allegations of wrongful voice identification can support the exclusion of the national origin conclusion that is relied on to establish identity: M.M., at para. 72.

[90] There is an air of reality to the allegations that this identification is manifestly unreliable. It is an important part of the extradition process that the judge should rely on admissible evidence only or not rely on manifestly unreliable evidence.

[91] Identity is an essential element of the offence that must be proven. An extradition judge must consider whether there is sufficient evidence of the essential elements of the offence and any other conditions on which the prosecution bears the evidential burden of proof to justify putting the person on trial: Ferras, at para. 21; M.M., at para. 46 citing Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 24.

[92] The ROC, at para. 27, explains that Balogun’s voice was identified, in part, because of the officers’ opinion that Balogun had a “distinct Nigerian accent.” O’Connor’s voice was “identified” by the same officers, in part because of her “distinct Canadian accent”. In the SROC, at paras. 3-7, SA West adds that the police based their identification of both O’Connor and Balogun on voice, intonation, cadence, similarities in phrasing, and manner of speaking when comparing these Canadian bank recordings to others obtained in the US.

[93] It is likely that the bank recordings are relevant to the Applicants’ position of unreliable voice identification. The recordings are the evidence of what the officers listened to and relied on to both draw a point of comparison and formulate the above noted opinions. They are likely to yield essential evidence of whether the opinions are “so defective or appears so unreliable” or “manifestly unreliable” that it should not be given any weight and it would be “dangerous or unsafe” to rely on it order committal on this basis: M.M., at para. 63; Ferras, at paras. 54 and 40.

[94] The two recordings are used as an essential comparison point for the determination of whether the audio recordings collected in the US are from the same persons. In my view, the Applicants have showed that there is a danger that the voice identification opinions are unreliable or unreasonable.

[95] During submissions, the Respondent was not able to point to anything in the total record that supports that the US officers have a legitimate basis to ground their opinion that the people heard on the recordings have distinct Canadian and Nigerian accents. There is no explanation as to what this means or how it could be reliable.

[96] Distinguishable from the cases relied on by the Respondent, there is no evidence that the US authorities are familiar with the Applicants’ voices to be able to identify purported distinctive qualities: Guevara-Mendoza, para. 44; USA v Johal, 2011 BCSC 1068, [2011] B.C.J. No. 1505, at paras 39 - 51.

[97] The presumption of reliability may be rebutted by evidence showing “fundamental inadequacies or frailties in the material relied on by the requesting state”: M.M. at para. 72 citing Anderson, at para. 31.

[98] The Court of Appeal has repeatedly held that voice identification evidence ought to be treated with extreme caution and is not admissible in some cases where there is inadequate foundation for an opinion: R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.), 17 C.R. (6th) 362, at paras. 41-43; R. v. Clouthier, 2012 ONCA 636, [2012] O.J. No. 4449, at para. 19; R. v. Quidley, 2008 ONCA 501, 232 C.C.C. (3d) 255, at para. 36; HMTQ v. Savoy, 2000 BCSC 296, [2000] B.C.J. No. 695, at paras. 35-36.

[99] Disclosure of the baseline recordings are essential to fairly determine the admissibility of the total identification evidence tendered. At this stage, I am satisfied that the officers’ voice identification is important to the overall identification of the Applicants. While this court does not have jurisdiction to order additional disclosure in relation to the FBI’s source materials used to compare the Canadian bank recordings with audio collected in the United States, that does not detract from the reality that the requesting state has made clear that the Canadian-based calls are an essential component of their position.

[100] I recognize that this court has a restrained function. This court is not to assess the truth of the requesting state’s analysis of the phone numbers mentioned in the recordings with bank or other records and their nexus to the Applicants. That category of information is presumed to be true unless rebutted. M.M. at para. 62.

[101] I have considered the tension that even if the officer’s opinions about the nationality of the people heard on the recordings are manifestly unreliable, the other evidence summarized in the combined record may be sufficient to make out identification to justify committal. In other words, even if that contested opinion evidence about national origin is excluded or given no weight for being completely unreliable, at the extradition hearing I must still determine whether the remaining parts of the ROC and SROC are sufficient on the element of identity.

[102] In my view, that determination will be safely made after the extradition hearing with the benefit of counsel’s submissions. It remains paramount that a judge ensure that the extradition hearing is fair and the decision is based on admissible evidence only. This necessarily means that manifestly unreliable evidence is not relied upon, even in part, in deciding whether the test for committal is satisfied. This is consistent with the principle pursuant to s. 32(2) of the Extradition Act, that “[e]vidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.”

[103] Counsel’s further submissions will assist to fairly determine if any part of the voice identification should be disregarded for the purposes of determining whether the evidentiary burden for extradition has been met: Anderson, at para. 47.

[104] I am not satisfied that this is a case where I can or should determine now that irrespective of the admissibility of this evidence, the record is otherwise sufficient on identification: Anderson, at paras. 44-47.

[105] At the same time, I have considered that it is important to ensure order and efficiency and that the hearing does not descend into a trial. I am persuaded that ordering this limited disclosure will facilitate a fair hearing without compromising efficiency.

[106] In conclusion on this point, I find that the Applicants are entitled to disclosure with respect to items obtained by DC Williams of: a) A copy of the voice recording of the baseline call (with date and time) from BMO purportedly from Rachel O’Connor; and b) A copy of the recording of the baseline call from TD Bank (with date and time) allegedly from Timothy Balogun.

[107] I am not satisfied at this point that the testimony from DC Williams is justified. DC Williams obtained the recordings and other records pursuant to a judicial authorizations, the validity of which is not challenged at this motion. Further, the Applicants have not demonstrated that he provided voice identification opinion evidence relied upon by the requesting state. According to the ROC, he collected records and summarized their contents, the accuracy of which are not challenged. It is the basis of the US authorities opinions that is in issue.

Cellphone

[108] Regarding disclosure of Balogun’s seized cellphone upon arrest by the TPS, I find that Balogun has not met the test for disclosure. The argument is not grounded in a proper foundation. The request is not tied to a Charter breach argument or manifest unreliability of the evidence.

[109] If this disclosure was produced, it would not undermine the prima facie case since according to the record, the witness in the US, Individual 1, recorded this call on December 1, 2022 and provided it to the US authorities. In other words, whether the existence of a video call being made is reflected on the Applicant’s phone or not does not change that proposition. Further, whether the Applicant’s device was used or not does not affect the reliability of this evidence. This is because a video call can be conducted on a variety of digital devices from tablets, computers, and phones, including those not owned by the Applicant.

[110] Although no evidence was adduced by the Applicant, the argument at its highest is that if his phone does not show it was used to make the call in question, this supports the theory that it did not happen or Individual 1 is mistaken. Factoring the totality of the record, that may provide a partial defence or credibility challenge, at best.

CONCLUSION

[111] Disclosure of a copy of the two Canadian bank audio recordings with confirmation of their dates and times are ordered, to be provided forthwith.

[112] Should counsel require any further direction from the court, they may schedule a remote appearance through the trial office prior to the extradition hearing of November 28, 2024.

Mirza J. Released: October 31, 2024

[1] See also Dynar at paras. 132-135

[2] During submissions, it was raised whether the Applicants have attempted to subpoena the recordings. They had not.