



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Omoruyi, 2018 ONCA 722

DATE: 20180831

DOCKET: C64700

Watt, Huscroft and Fairburn JJ.A.

IN THE MATTER OF an appeal of a
    committal order pursuant to s. 49 of the
Extradition Act
, S.C. 1999,
    c. 18

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

BETWEEN

Attorney General
    of Canada On Behalf Of

the United States
    of America

Respondent

and

Osayi Edison Omoruyi

Appellant

Raymond Boggs, for the appellant

Adrienne Rice, for the respondent

Heard and released orally: August 24, 2018

On appeal from the committal order of Justice Edward M.
    Morgan of the Superior Court of Justice, dated March 17, 2017, and on
    application for judicial review of the surrender order of the Minister of
    Justice, dated November 13, 2017.

REASONS FOR DECISION

[1]

The appellant appeals the order of a judge of the Superior Court of
    Justice committing him for surrender to the United States of America for
    prosecution on charges of conspiracy to commit wire fraud and mail fraud, and
    possession and transmission of counterfeit money orders. The domestic
    equivalent offence is possession of property obtained by crime. About eight
    months later, the Minister of Justice ordered the appellants surrender on the
    offences for which his extradition is sought.

[2]

The materials before the hearing judge consisted of the Record of the Case;
    a Supplemental Record of the Case; and an Agreed Statement of Fact. The
    evidence summarized in the materials filed on the committal hearing was largely
    circumstantial. It described a web of connections between a person alleged to
    be the appellant, various accomplices and the origin and destination of the
    funds generated by the scheme, an amount approaching $500,000 U.S. dollars.

[3]

As we understand the submissions advanced on behalf of the appellant, he
    says that the evidence adduced at the committal hearing fails to meet the
    standard of proof required in connection with two essential elements of the
    domestic equivalent offence of possession of property obtained by crime:

i.

that the appellant was a participant in the scheme (the identification
    issue); and

ii.

that the appellant knew of the criminal origins of the funds received
    (the knowledge issue).

[4]

We disagree.

The Identification Issue

[5]

On the identification issue, there was evidence that the recipient of
    the wired transfers in Nigeria was a person with the same name and same date of
    birth as the person who appeared before the hearing judge in the courtroom.
    Under s. 37(a) of the
Extradition Act,
SC 1999, c 18
, the fact that the name of the person before
    the court is
similar
to the name that is in the documents submitted by
    the extradition partner, and we would add, to the name of the person who
    retrieved proceeds of the fraud, is sufficient to satisfy the evidentiary threshold
    for identity.

[6]

In this case, the evidence goes beyond mere similarity of names. The names
    are accompanied by dates of birth. Both the names and the dates of birth are not
    merely similar: they are identical. The hearing judge was also entitled, under
    s. 37(b) of the
Extradition Act
, to consider, if he wished, the
    similarities between the physical characteristics of the person who appeared
    before him and the person depicted in the photographs included in the record of
    the case on the identification issue.

[7]

The hearing judge was entitled, indeed required, to consider the
    circumstantial evidence of identification as a whole to determine whether,
    considered in that way, it met the standard of proof required. He did so. He
    made no error in the standard he applied or in the conclusion he reached.

The Knowledge Issue

[8]

Turning to the issue of knowledge, we are equally satisfied that the
    hearing judge did not err in concluding that there was evidence upon which a
    reasonable jury, properly instructed, could find this element of the domestic
    equivalent offence proven beyond a reasonable doubt.

[9]

Considered in its totality, the evidence summarized in the material
    before the hearing judge would permit a reasonable jury, properly instructed,
    to conclude among other things, that:

i.

the funds Patricia Beavers received were obtained by fraud;

ii.

the subsequent transfers from Beavers to the appellant were proceeds of
    the fraud, some of which were retained by Beavers;

iii.

the appellant received direct transfers from one of the victims on the basis
    of false representations; and

iv.

the appellant and another recipient of funds, whom Beavers expressly
    identified as a participant in the fraud, retrieved their transfers from the
    same financial institution in Nigeria.

These inferences, available
    from the evidence summarized in the materials before the hearing judge, met the
    threshold requirement on what we have termed the knowledge issue.

[10]

The
    appeal from the decision of the hearing judge is dismissed.

[11]

The
    appellant has abandoned his application to review the decision of the Minister
    of Justice. That application is dismissed as abandoned.

David Watt J.A.

Grant Huscroft J.A.

Fairburn J.A.


