



COURT OF APPEAL FOR ONTARIO

CITATION:
United States v. Akinbobola, 2022 ONCA 29

DATE: 20220120

DOCKET: C68781

MacPherson, Roberts and Miller
    JJ.A.

IN THE MATTER OF an application for
    judicial review pursuant to s. 57 of the
Extradition Act
, S.C. 1999,
    c. 18

BETWEEN

The Minister of Justice of
    Canada and Attorney General of Canada
(on behalf of the United States of America)

Respondent

and

Tony Akinbobola

Applicant

Jeff Marshman, for the applicant

Rebecca Sewell and Roy Lee, for the
    respondent

Heard: September 29, 2021 by video conference

On application for judicial review of
    the surrender order of the Minister of Justice, dated October 26, 2020.

B.W. Miller J.A.:


[1]

The United States of America seeks extradition
    of the applicant for prosecution. The applicant is alleged to have conspired
    with others to defraud elderly victims of hundreds of thousands of dollars
    through a sweepstakes scheme. In earlier proceedings, this Court concluded
    there was sufficient evidence to justify the applicants committal for
    extradition. The Minister of Justice then ordered the applicant surrendered to
    the United States.

[2]

The applicant brings this application for
    judicial review of the surrender decision on the basis that the Minister of
    Justice erred in his assessment of whether extradition would violate the applicants
    right to remain in Canada under s. 6 of the
Charter of Rights and Freedoms
,
    as well as his right not to be deprived of liberty except in accordance with
    principles of fundamental justice, as provided by s. 7 of the
Charter
.
    The applicant also argues that his surrender would be otherwise unjust or
    oppressive, and the Ministers decision to surrender him was therefore unreasonable.

[3]

For the reasons given below, I would dismiss the
    application.

A.

History of Proceedings

[4]

The sweepstakes scheme is alleged to have caused
    losses of over $900,000 to victims, who were primarily elderly residents in the
    state of Texas. Victims would be called and told that they had won a
    sweepstakes. They would be instructed to call the applicant, who would convince
    the victims to deposit a fraudulent cheque of $8,000, and then send cash or
    money orders to him to facilitate deposit of their much larger prize. The
    applicant was not the originator of the scheme, but is alleged to have been one
    of several people hired to prepare the sweepstakes letters, take calls from the
    victims, and receive and forward the funds. The applicant is alleged to have
    operated entirely from Ontario, from March to October 2015.

[5]

The applicant was arrested in 2018. He was
    initially discharged following a committal hearing in 2019, but the discharge
    was successfully appealed to this Court, which committed him for extradition. Following
    committal, and after receiving submissions from the applicant, the Minister of
    Justice ordered the applicant to be surrendered to the United States.

[6]

The Ministers reasons considered whether the
    decision to prefer extradition over domestic prosecution infringed the
    applicants mobility rights under s. 6(1) of the
Charter
. He also
    considered whether the applicants surrender would infringe the applicants s.
    7 rights, or otherwise be unjust or oppressive. Taking into account all of the
    circumstances of the applicants case and Canadas international commitments,
    the Minister concluded that the applicant ought to be surrendered.

B.

Issues on judicial review

[7]

The applicant argues that the Minister committed
    the following errors:

1.

Concluding that surrendering the applicant
    would not constitute an unjustifiable infringement of his right to remain in
    Canada under s. 6 of the
Charter
;

2.

Not concluding that surrendering the applicant to
    face a likely sentence of 24-30 years would be contrary to principles of
    fundamental justice and therefore violate his rights under s. 7 of the
Charter
;
    and

3.

Concluding that surrendering the applicant
    would not be otherwise unjust or oppressive in the circumstances.

C.

The Standard of Review

[8]

Section 57 of the
Extradition Act
, S.C.
    1999, c. 18, provides a statutory right of judicial review of the Ministers
    surrender order. The Ministers decision, including the determination that
    surrender would not be a violation of the
Charter
and would not be
    otherwise unjust or oppressive under s. 44(1)(a) of the
Extradition Act
,
    is afforded substantial deference and assessed using the standard of
    reasonableness due to the Ministers expertise in relation to Canadas
    international obligations:
Romania v. Boros
, 2020 ONCA 216, 150 O.R.
    (3d) 158. The decision to surrender is an exercise of discretion, and the reviewing
    court is not entitled to re-weigh the facts and substitute its own view. If the
    Minister considered the relevant facts and reached a reasonable conclusion based
    on those facts, the decision must be upheld:
Lake v. Canada (Minister of
    Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 2, 26, 34, 38, and
    41.

D.

Analysis

(1)

S. 6(1) of the
Charter
 the right to remain in Canada

[9]

The right of Canadian citizens to remain in
    Canada is protected by s. 6(1) of the
Charter
, which provides: [e]very
    citizen of Canada has the right to enter, remain in and leave Canada. In
United
    States v. Cotroni
, [1989] 1 S.C.R. 1469, the Supreme Court determined that
    extradition is a
prima facie
limitation on the right to remain in
    Canada. However, the Court stated at p. 1481 of
Cotroni
that extradition
    lies at the outer edges of the core values of s. 6(1), and at p. 1483 that extradition
    will be generally warranted under s. 1 of the
Charter
as a reasonable
    limitation of the right to remain in Canada, given the pressing and
    substantial objectives of extradition: (1) protecting the public against crime
    through its investigation; (2) bringing fugitives to justice for the proper
    determination of their criminal liability; (3) ensuring, through international
    cooperation, that national boundaries do not serve as a means of escape from
    the rule of law:
Sriskandarajah v. United States of America
,
    2012 SCC 70, [2012] 3 S.C.R. 609, at para. 10.

[10]

The Ministers discretion to extradite is not
    unfettered, and the Minister must consider whether it would be appropriate to
    prosecute domestically instead of ordering surrender. The analysis of whether the
    limit of s. 6(1) rights occasioned by a particular extradition is justified
    under s. 1 uses the same criteria  known as the
Cotroni
factors  as the
    non-
Charter
analysis for determining whether a domestic prosecution
    would be preferable to extradition:
Cotroni
, at pp. 1497-98.

[11]

The applicant argued that only two of the
Cotroni
factors favoured surrender  that the victims reside primarily in the United
    States, and American authorities played a major role in the investigation into
    the alleged scheme  and that the remainder favoured domestic prosecution. The
    Minister disagreed, focusing his decision on the
Cotroni
factors he
    considered most persuasive:

·

The impact of the offence was experienced in the
    U.S.;

·

American law enforcement played the major role
    in the development of the case;

·

The U.S. laid charges;

·

The U.S. has the most comprehensive case and is
    the most effective jurisdiction in which to proceed with a prosecution;

·

The U.S. is ready to proceed to trial;

·

Seven of the nine witnesses reside in the U.S.;

·

Seven other accused are involved, two of whom
    are fugitives from justice. The others, excluding the applicant, have been or
    are being tried in the U.S.

[12]

The applicant argues that the Minister erred in
    law in not considering in this analysis the potential disparity in sentencing between
    the U.S. and Canada for similar offences. The applicant argues that he faces a
    potential sentence in the U.S. ranging from 24-30 years, while the sentencing
    range in Canada for equivalent offences would be 2-3 years.

[13]

I do not agree that the Minister erred in this
    respect. The applicant is correct that the severity of sentence is included in the
    non-exhaustive list of relevant factors set out in
Cotroni
. However, as
    the Supreme Court held in
Sriskandarajah
at para. 22,
Cotroni
sets out a non-formalistic test that grants flexibility to the Ministers
    decision. The Minister is not required to provide a detailed analysis for
    every factor. An explanation based on what the Minister considers the most
    persuasive factors will be sufficient:
Lake
, at para 46.

[14]

The argument that the Minister overlooked the
    sentencing differential is readily countered by considering the structure of
    the Ministers reasons. Before addressing the s. 6(1) argument, the Minister
    first addressed the applicants arguments that his surrender would violate his
    rights under s. 7 of the
Charter
. Among those arguments was the
    argument that surrender in the face of the sentencing disparity would be
    contrary to the principles of fundamental justice. The Minister reasoned that
    it would not be. (I address the substance of that argument below, in reviewing
    the Ministers s. 7 reasons.) As the Crown argues, having considered the
    sentencing disparity argument at length in the s. 7 analysis, and having
    rejected the argument, the Minister was not required to repeat the analysis in
    the s. 6(1) reasons, or even expressly refer to it. It was sufficient for the
    Minister to have stated that he considered all of the
Cotroni
factors and
    to note the applicants argument that only two
Cotroni
factors
    favoured surrender, and that all of the others  which would include the sentencing
    disparity  favoured domestic prosecution. It is clear, reading the reasons as
    a whole, that the Minister considered and rejected the argument that a balancing
    of the
Cotroni
factors  including sentencing disparity  favoured
    domestic prosecution. The Minister did not commit the error of law advanced by
    the applicant.

(2)

S. 7  deprivation of liberty contrary to the
    principles of fundamental justice

[15]

The applicants second argument is that the
    Minister erred in concluding that his surrender in the face of the potential
    sentencing disparity would be a deprivation of liberty contrary to the principles
    of fundamental justice and would thus violate his rights under s. 7 of the
Charter
.

[16]

The applicant is a 51-year-old convention
    refugee from Nigeria, who has lived a productive and pro-social life in Canada
    for 20 years. He is married, with an 11-year-old child. The applicant argues
    that his alleged role in the sweepstakes scam was minor, time-limited, and
    non-violent. It is therefore unconscionable, he argues, that he could face a
    sentence of 24-30 years, particularly given that the sentence range for a
    comparable crime committed in Canada would be 2-3 years.

[17]

The Minister did not characterize the matter in
    the same way. First, with respect to the sentencing disparity, the Minister
    concluded, based on advice from the Public Prosecution Service of Canada and
    the office of the Attorney General of Ontario, that the applicant would likely
    receive a global sentence in Canada between 6 and 8 years. The Minister also
    noted that although U.S. sentencing guidelines indicate a sentence range of
    approximately 24-30 years, that range presumes the imposition of consecutive
    rather than concurrent sentences. However, the Minister was advised by the U.S.
    Department of Justice that the decision to impose consecutive sentences is
    discretionary, and should multiple sentences be imposed they would likely be
    concurrent. Additionally, the Minister noted that the other individuals alleged
    to have been involved in the same criminal enterprise as the applicant were
    sentenced, after entering guilty pleas, to between 8 and 14 years imprisonment.

[18]

Nevertheless, the Minister acknowledged that the
    applicant could receive a sentence far in excess of what he would receive in
    Canada. The Minister noted, however, that in s. 7 analysis sentencing disparity
    is decisive only in exceptional circumstances:
Canada (Justice) v.
    Fischbacher,
2009 SCC 46, [2009] 3 S.C.R. 170. A sentence is not unjust or
    oppressive simply because the applicant would have received a lesser sentence had
    he been prosecuted domestically:
USA v. Ranga
, 2012 BCCA 82, [2012]
    B.C.W.L.D. 5379, at para. 9. As this Court held in
France v. Diab
,
    2014 ONCA 374, 120 O.R. (3d) 174, at para. 202, the test for refusing surrender
    on s. 7 grounds is strict, and only precludes surrender in cases of a very
    exceptional nature where surrender to the requesting state would shock the
    conscience of Canadians and be simply unacceptable (citations omitted).

[19]

The Minister did not accept the applicants
    characterization of his role in the alleged offence as minor, despite the fact
    that he is not alleged to have been the originating or organizing mind behind
    the scheme. The Minister considered the basic principles of the legal system supporting
    surrender: extradition is based on principles of comity and fairness to
    cooperating states; Canada ought not to be a safe haven for fugitives from
    justice; and justice is best served in the jurisdiction where the crime was
    allegedly committed and where the harms of that crime were experienced.

[20]

The applicant asserts that this was not a
    reasonable conclusion, and that allowing the applicant to face a potential sentence
    of 24-30 years would shock the conscience of Canadians. However, the standard
    for setting aside the decision of the Minister as a violation of s. 7 is
    demanding, and it is not satisfied by a sentencing disparity of this nature. As
    this Court held in
United States v. Viscomi
, 2019 ONCA 490, 146 O.R.
    (3d) 145, at para. 46, the determination of whether a potential sentence is so
    severe as to be fundamentally unjust, is not established by a simple
    quantitative comparison of the relative lengths of foreign and domestic
    sentence ranges. And as in
Viscomi
, it is significant that the
    applicant has not identified any case law in which the length of the foreign
    sentence was found to constitute such an extreme punishment that it infringed
    s. 7. I would not allow the application on this ground.

(3)

Extradition Act
,
    s. 44(1)(a) - Unjust or oppressive

[21]

The applicant argues that rejection of the
Charter
arguments is not dispositive of the application because s. 44(1)(a) of the
Extradition
    Act
requires the Minister to refuse surrender where it would be unjust or
    oppressive having regard to all the relevant circumstances, and that
    circumstances that do not amount to a violation of s. 6 or s. 7 of the
Charter
may nevertheless be sufficiently unjust and oppressive to require the Minister
    to refuse surrender under s. 44(1)(a).

[22]

The Minister retains discretion to refuse
    surrender on the basis that it would be unjust and oppressive even where no
Charter
breach is alleged or established:
Fischbacher
, at para. 39. It is therefore
    theoretically possible for circumstances short of a
Charter
violation
    to ground a s. 44(1)(a) refusal, although the applicant was not able to supply
    any examples of a court on judicial review having found so. On this application,
    the applicant has simply repeated the arguments made under s. 6(1) and s. 7 of
    the
Charter
 that the Ministers decision is unreasonable because it
    would be unjust and oppressive to order surrender where an applicant faces a potential
    sentencing disparity of the magnitude faced by this applicant. This is
    essentially an invitation to this court to reweigh the factors considered by
    the Minister and come to a different conclusion. There is no basis for this
    court to do so. This ground of review is not established.

DISPOSITION

[23]

I would dismiss the application for judicial
    review.

Released: January 20, 2022 JCM

B.W.
    Miller J.A.

I
    agree. J.C. MacPherson J.A.

I
    agree. L.B. Roberts J.A.


