





CITATION:
United States of America v. Orphanou, 2011
          ONCA 612



DATE: 20110927



DOCKET: C52143 and C52909



COURT OF APPEAL FOR ONTARIO



Weiler, Cronk and Watt JJ.A.



BETWEEN



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




Respondents



and



Alex Orphanou, a.k.a. Alexos Orphanou



Appellant/Applicant



Gregory Lafontaine, for the appellant



Richard Kramer and Jacqueline Palumbo, for the respondents



Heard:
September 8, 2011



On appeal from the committal order
          of Justice Janet Wilson of the Superior Court of Justice, dated April 28,
          2010, reported at 2010 ONSC 2153, and on judicial review of the surrender
          order of the Minister of Justice, dated November 4, 2010.



CRONK J.A.:



[1]

The appellant, Alex Orphanou, is wanted in the United States for trial
    on various offences relating to an alleged telemarketing credit card fraud
    scheme that is said to have involved approximately 30,000 victims and losses of
    about $7 million USD.  By order of Wilson J. of the Superior Court of Justice
    dated April 28, 2010, the appellant was ordered committed for extradition.  He
    was ordered surrendered by the Minister of Justice on November 4, 2010.

[2]

The appellant appeals against his committal and seeks judicial review of
    the Ministers surrender order.  For the reasons that follow, I see no basis on
    which to interfere with either decision.

A.        Committal Order

[3]

The appellant was committed for extradition on the offence of fraud
    contrary to section 380(1)(a) of the
Criminal Code of Canada
 (the
    Code).  He attacks the committal order on two main grounds.  First, he argues
    that the extradition judge had no jurisdiction to proceed since the version of
    the Authority to Proceed (ATP) filed by the Attorney General at the
    extradition hearing was a photocopy, rather than the original, of the ATP.  The
    appellant contends that a photocopy of an original ATP does not constitute a
    proper ATP within the meaning of the
Extradition Act
, S.C. 1999, c. 18
    (the Act).

[4]

Second, the appellant submits that the evidence contained in the
    certified Record of the Case (ROC) filed at the extradition hearing was
    insufficient to warrant his committal for trial on a charge of fraud under s.
    380(1)(a) of the Code.  More particularly, he contends that: (1) the evidence
    in the ROC does not support a charge of fraud over $5,000 since the losses
    allegedly suffered by the eight fraud victims who are expressly identified in
    the ROC were less than $5,000, both individually and collectively; and (2) the
    uncorroborated evidence of Jasen Plunkett, which identified the appellant as
    the person sought by the United States, was unreliable and warranted close
    scrutiny by the extradition judge given Mr. Plunketts lengthy history of
    criminal conduct.  The appellant maintains that without Mr. Plunketts evidence,
    the Attorney General failed to establish on a balance of probabilities that the
    appellant was the person whose extradition was sought by the requesting state, contrary
    to the requirements of s. 29(1)(a) of the Act.

[5]

For the following reasons, I would not accede to either of these
    arguments.

(1)

ATP Document

[6]

I do not accept that the version of the ATP relied on by the Attorney
    General at the extradition hearing deprived the extradition judge of jurisdiction
    to proceed.

[7]

The Act does not require that the original of an ATP be tendered at an
    extradition hearing.  Nor does the Act require that a certified copy of an ATP
    be filed.  If Parliament had intended that the filing of the original of an ATP
    was a necessary prerequisite to ground jurisdiction to proceed with an
    extradition hearing, it might be expected that such an intention would be
    clearly and unambiguously stated.

[8]

Moreover, in my view, the Act contains evidence of an intention by
    Parliament to relieve against the mandatory filing of an original ATP to engage
    the jurisdiction of the Superior Court to conduct an extradition hearing.  Section
    15(4) of the Act states:

A copy of an authority to proceed produced by a
    means of telecommunication that produces a writing has the same probative force
    as the original for the purposes of [Part 2 of the Act].

[9]

The extradition judge concluded that s. 15(4) of the Act permitted the
    extradition hearing to proceed based on the filing of a photocopy of the
    original ATP.  With respect, I am not persuaded that s. 15(4) provides such
    authority.

[10]

Section 15(4) is concerned with a copy of an original ATP that is produced
    by a means of telecommunication that produces a writing.  The issue,
    therefore, is whether the word telecommunication as used in s. 15(4) of the
    Act includes a version of an ATP that is produced by means of a photocopier.

[11]

The word telecommunication is not defined under the Act.  However, it
    is used in various provisions and defined in s. 326(2) of the Code.   Section 326(2)
    of the Code concerns the offence of theft of telecommunication service.  It
    defines telecommunication as any transmission, emission or reception of
    signs, signals, writing, images or sounds or intelligence of any nature by
    wire, radio, visual, or other electromagnetic system.  Section 35 of the
Interpretation
    Act
, R.S.C. 1985, c. I-21, s. 2 of the
Copyright Act
, R.S.C. 1985,
    c. C-42, and s. 2(1) of the
Telecommunications Act
, S.C. 1993, c. 38 all
    contain virtually identical definitions of the terms telecommunication and
    telecommunications.

[12]

In
R. v. McLaughlin
, [1980] 2 S.C.R. 331, the Supreme Court of
    Canada considered the meaning of telecommunication for the purpose of the
    offence of fraudulent use of a telecommunication facility, established under a
    predecessor version of the Code.  Justice Estey, at p. 341, in a comparison
    similar to the case at hand, stated that: [t]aken too literally, the language
    [of the offence of fraudulent use of a telecommunication facility] may, of
    course, embrace the operation of a simple Xerox machine since it results in the
    transfer of optical images from one point (the item being printed) to another
    point (the blank sheet of paper on which the item is printed), but it would
    hardly fall within the ordinary usage of the language to classify such a device
    or system as being a telecommunication facility.

[13]

Justice Estey then continued at p. 341:

The term telecommunication as defined in the
Criminal
    Code
[R.S.C. 1970, c. C-34, s. 287] connotes a sender and a receiver. The
    computer, being a computing device, contemplates the participation of one
    entity only, namely, the operator.  In a sense, he communicates with himself,
    but it could hardly be said that the operator by operating the terminal or
    console of the computer is thereby  communicating information in the sense of
    transmitting information and hence it stretches the language beyond reality to
    conclude that a person using a computer is thereby using a telecommunication
    facility in the sense of the
Criminal Code
.
[1]

[14]

A similar meaning is attributed to the word telecommunication in
    general and specialized dictionaries.  For example, both
The Oxford English
    Dictionary
, 2d ed. and
The Concise Oxford English Dictionary
define
    telecommunication as involving communication over a distance by various
    electrical and other means (
e.g.
cable, telegraph, telephone,
    broadcasting).  Typically, the production of a written document by means of a
    photocopier does not involve communication over a distance by electrical or
    other means.

[15]

Against this backdrop, the question before us is how should a statutory
    provision be interpreted when its terms seem clear and unequivocal, yet its
    apparent meaning will not ensure fulfillment of the objectives for which it was
    enacted?  The Supreme Court of Canada has definitely answered this question. 
    On numerous occasions, the Supreme Court has endorsed the following
    interpretive method as the preferred approach to statutory interpretation,
    described by E.A. Driedger in
The Construction of Statutes
(Toronto:
    Butterworths, 1974), at p. 67:

Today there is only one principle or approach,
    namely, the words of an Act are to be read in their entire context, in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament.

See also
Sullivan on the Construction of Statutes
, 5th
    ed. (Markham: LexisNexis Canada Inc., 2008), at p. 1;
Re Rizzo & Rizzo
    Shoes Ltd.
, [1998] 1 S.C.R. 27, at para. 21;
Bell ExpressVu

Limited Partnership v. Rex
, [2002] 2
    S.C.R. 559, at para. 26.

[16]

The current state of the law recognizes that in interpreting a statute,
    text alone is not enough because meaning flows at least partly from context, of
    which the statutes purpose is an integral element: Pierre-André Côté in
The
    Interpretation of Legislation in Canada
, 3d ed., (Toronto: Carswell, 2000),
    at p. 387.

[17]

Adopting this purposive interpretive approach in this case, I read s. 15(4)
    of the Act as designed to ensure, in the contemporary world of electronic
    communications, that the courts jurisdiction to proceed with an extradition
    hearing is not displaced solely on the basis that the original version of the
    relevant ATP is unavailable for filing at the extradition hearing.  Thus, for
    example, s. 15(4) permits the filing at an extradition hearing of a facsimile
    or other electronically produced written version of an ATP.  The production of
    these types of copies of an ATP involves the use of a form of telecommunication
    or transmission of information or intelligence.

[18]

There is no suggestion in this case that the record before the
    extradition judge included evidence that the production of a photocopy involves
    the transmission or reception of information or intelligence.  Nor does the
    Attorney General claim that the version of the ATP at issue was generated by or
    involved a communication over a distance.  In the absence of such evidence, it
    is not at all clear to me that s. 15(4) of the Act applies to a photocopy of an
    original ATP.

[19]

I conclude that s. 15(4) of the Act is not directly responsive to the
    appellants complaint regarding the form of the ATP filed at his extradition
    hearing.  That said, it is also my view that s. 15(4) signals a parliamentary
    intention that considerable flexibility be accorded to the issue of the form of
    an ATP that is acceptable for use at an extradition hearing for jurisdictional
    purposes.

[20]

The absence of any statutory requirement for the filing of the original
    version of an ATP at an extradition hearing, coupled with the clear expression
    in s. 15(4) of the Act of Parliaments intention that a liberal approach be
    taken to the form of an ATP that may be filed at an extradition hearing,
    strongly support the conclusion that reliance on a photocopied version of an
    ATP at an extradition hearing is unobjectionable.

[21]

Moreover, this conclusion accords with common sense.  Simply put, if a
    facsimile or other electronically produced written version of an ATP is
    sufficient to ground jurisdiction at an extradition hearing, it is difficult to
    conceive that a photocopy of the original version of an ATP, the authenticity
    of which is not challenged, is insufficient.

[22]

Accordingly, I would not give effect to this ground of appeal.

(2)

Sufficiency of the Evidence Supporting Committal

[23]

Section 29(1)(a) of the Act provides that an extradition judge shall
    order the committal into custody of a person sought for prosecution to await
    surrender if two prerequisites are satisfied: (1) there is evidence admissible
    under the Act of conduct that, had it occurred in Canada, would justify
    committal for trial in Canada on the offence set out in the ATP; and (2) the
    extradition judge is satisfied that the person before the court is the person
    sought by the extradition partner.

[24]

In my view, both of these prerequisites were satisfied in this case.

[25]

Turning to the first prerequisite, there is a wealth of evidence in the
    ROC to support a charge of fraud over $5,000.  The evidence detailed in the ROC
    indicates that the alleged fraudulent scheme, of which the appellant is said to
    have been the chief architect and directing force, was massive in scope and
    highly sophisticated.  It involved numerous corporations owned or controlled by
    the appellant, thousands of victims in the United States and victim losses totalling,
    in the aggregate, approximately $7 million USD.

[26]

Based on the evidence contained in the ROC, it is alleged that the
    appellant fraudulently telemarketed credit cards by offering persons resident
    in the United States, who had poor credit ratings, guaranteed credit cards in
    exchange for a fee.  Various telemarketers, employed by the appellant or one of
    his companies, contacted these persons in the United States and, on request
    therefor, obtained their bank account information.  Thereafter, by utilizing
    the services of several automated clearinghouse debit processors in the United
    States (ACHs), the appellant is alleged to have collected fees from the
    victims accounts, depositing the fees into bank accounts that he controlled. 
    Despite the receipt of such fees, no credit cards were ever provided.

[27]

The evidence detailed in the ROC to substantiate this fraud claim, as
    summarized in the Attorney Generals factum, includes evidence that:

(a)
          between February 1999 and August 2002, Federal Credit, First Federal Key
    Nation and Pacific First [corporations owned or controlled by the appellant]
    initiated thousands of ACH debits totalling approximately $7M USD.  This figure
    translates into approximately 30,000 victims of the alleged fraud scheme;

(b)
         the eight victims of the fraud scheme highlighted in the ROC were referred
    to as [s]everal of the telemarketing fraud victims;

(c)
          during 2000 and 2001, one of the debit processors, EFT Networks,
    transferred approximately $1,877,865 USD into two First Federal accounts
    provided to the debit processor by the appellant;

(d) 
        a Mellon Bank account was opened in the name of First Federal with a
    signature card signed by the appellant.  There were $2,264,226 USD in total
    deposits going through this account from January 2000 to May 2001;

(e) 
         during 2001, EFT Networks processed transactions for the appellant through
    the corporation Key Nation and transferred approximately $3,165,819 USD from consumers
    in the United States into Key Nation bank accounts at Bank of America;

(f) 
         the second debit processor, First American Payment Processing, handled
    approximately 8,095 transactions on behalf of First Federal during the period
    of January 2000 to May 2001, transferring approximately $1,025,067 USD into two
    accounts provided to the debit processor by the appellant; and

(g)
          between January 2001 and October 2001, the same debit processor processed
    1,796 transactions for Key Nation and transferred at least $357,404 USD into
    the Key Nation bank account at Bank of America.

[28]

This evidence indicates that the number of transactions, the scale of
    financial activity, and the quantum of funds involved in the alleged fraud scheme
    extend far beyond those transactions involving the eight fraud victims who are
    expressly identified in the ROC as anticipated witnesses at trial.

[29]

The ROC also states that a former employee of one of the appellants
    companies  Sankya Luque  is expected to testify at trial that, on her first
    day of employment, she was provided a sales script to read off of and that
    she began making cold calls to individuals who she believed were in the United
    States.  This witness anticipated trial testimony is further described in the
    ROC as follows:

Luque recalls that the sales script provided to her
    and others at FIRST FEDERAL announced that the consumer had been approved for a
    MasterCard credit card.  The written script Luque was provided also included a
    credit limit for the credit card being offered.  That as part of the prepared
    script, Luque told potential clients that they would have to provide their
    banking information and, if the customer agreed to the offer, the call would be
    taken over by a supervisor in the call center.  Luque estimated that there were
    between 20  30 other people working at the FIRST FEDERAL call center which was
    located on Eglinton Ave. in Toronto, Ontario.

Sankyn [
sic
] Luque is further expected to
    testify that there was no doubt in her mind that FIRST FEDERAL was selling a
    credit card over the telephone.

[30]

Nothing in the ROC suggests that this witness anticipated testimony
    relates only to the eight fraud victims specifically identified in the ROC or
    their particular losses.

[31]

The extradition judge was required to assess the sufficiency of the
    evidence in respect of a charge of fraud over $5,000 in the context of all the
    evidence contained in the ROC.  That is precisely what she did.  Like the
    extradition judge, I am satisfied that, viewed as a whole, there is ample
    evidence in the ROC to support the committal order.

[32]

In any event, I note that the Attorney General applied at the
    extradition hearing  under s. 23(2) of the Act to amend the ATP by deleting the
    reference to subparagraph (a) of s. 380(1) of the Code, thereby generalizing
    the fraud charge.  The extradition judge indicated that if she had had any
    concerns concerning the sufficiency of the evidence to support committal on the
    offence of fraud under s. 380(1)(a) of the Code, she would have granted the
    Attorney Generals amendment motion.  Contrary to the appellants contention, the
    extradition judge did not err by addressing the alternative relief sought by
    the Attorney General in this manner.

[33]

Nor, in my opinion, did the extradition judge err in her treatment of
    the identification evidence of Mr. Plunkett.  I agree with the Attorney
    Generals submission that the credibility or ultimate reliability of Mr.
    Plunketts evidence, while a relevant trial consideration, is not germane to
    the determination of whether the totality of the evidence in this case was
    sufficient to justify committal.

[34]

The role of an extradition judge in assessing the evidentiary foundation
    for a committal order is a narrow one.  The extradition judge may refuse to
    commit a person for extradition only if he or she concludes that the evidence proffered
    in support of the requested committal is manifestly unreliable:
U.S.A. v.
    Ferras
, [2006] 2 S.C.R. 77, at para. 40.  For the purpose of this inquiry,
    the extradition judge may embark on only a limited assessment of the
    reliability of the evidence:
Ferras
.  In this context, the evidence
    certified by one of Canadas extradition partners as available for trial and
    sufficient to justify prosecution is presumptively reliable:
Ferras
, at
    paras. 52 and 66.

[35]

Consistent with the extradition judges narrow role,
Ferras
does
    not contemplate that an extradition judge will determine whether a witness is
    credible or whether his or her anticipated evidence is reliable.  Rather, the
    question for determination by the extradition judge is whether the evidence
    advanced in support of extradition passes the relatively low hurdle of
    threshold reliability.  As this court stated in
U.S.A. v. Anderson
, (2007),
    85 O.R. (3d) 380, at paras. 28 and 30, leave to appeal refused [2007] S.C.C.A.
    No. 159, There is no power to deny extradition in cases that appear to the
    extradition judge to be weak or unlikely to succeed at trial.  Only where the
    strength of the concerns about the reliability of the evidence advanced in
    support of committal warrant complete rejection of the evidence, do reliability
    concerns become relevant under s. 29(1) of the Act.

[36]

In this case, as detailed in the ROC, Mr. Plunkett is a former employee
    of one of the appellants companies that is said to have been an active
    corporate participant in the alleged fraudulent activity.  He knows the
    appellant personally.  His anticipated testimony includes evidence identifying
    the appellant as the same person whose extradition is sought by the United
    States and directly linking the appellant to the fraudulent conduct described
    in the ROC.

[37]

Mr. Plunkett has lengthy criminal antecedents.  His criminal record and
    unsavoury character will no doubt figure prominently in the assessment of his
    credibility at trial and in the evaluation of the ultimate reliability of his
    identification of the appellant as the mastermind of the alleged fraud scheme. 
    But under the current jurisprudence, those are matters for determination by the
    trial  not the extradition  judge.

[38]

Moreover, apart entirely from Mr. Plunketts anticipated evidence, the
    extradition judge compared a photograph of the person whose extradition was
    sought, as contained in the ROC, with the person before the court to determine
    whether the identification requirement of s. 29(1)(a) of the Act had been met. 
    She concluded that the person in court was the same person whose photograph
    appeared in the ROC.

[39]

I would therefore reject the appellants challenge to the sufficiency of
    the identification evidence at the extradition hearing.  Mr. Plunketts
    anticipated trial evidence, as outlined in the ROC and described above,
    together with the extradition judges own comparison of the photograph of the
    person sought with the appearance of the appellant were more than sufficient to
    satisfy the identification prerequisite to a committal order.

[40]

I would therefore dismiss the appeal from committal.

B.        Surrender Order

[41]

During oral argument, the appellants attack on the Ministers surrender
    order focused on one issue.  The appellant argued that the surrender order is
    unreasonable because it includes reference to a broad conspiracy allegation
    mentioned in the requesting states materials, although his committal was not
    sought on conspiracy.

[42]

This argument fails on the authority of
Canada (Justice) v. Fischbacher
,
    [2009] 3 S.C.R. 170 and
United States of America v. Barbu
, [2010] 271
    O.A.C. 47 (C.A.), leave to appeal refused [2011] S.C.C.A. No. 66.  Those cases hold
    that the principle of double criminality does not require the Minister of
    Justice to match the foreign offence and the Canadian corresponding offence
    when determining the issue of surrender.  On the contrary, surrender may be
    ordered on any foreign offence that arises from the same conduct on which
    committal was ordered:
Fischbacher
at paras. 41, 50-51.  As this court
    recently stated in
Barbu
at para. 35, [T]he Act and current
    jurisprudence do not require alignment between the surrender order and the
    extradition order.

[43]

I therefore accept the Attorney Generals submission that ordering the
    appellants surrender on both the fraud charges and the alleged United States
    conspiracy charge does not offend the principle of double criminality.  It will
    be for the trial court in the United States to determine whether the appellant
    is guilty of the charges in question, based on the nature and cogency of the
    evidence actually adduced at trial.

[44]

The Minister in this case considered the relevant facts and exercised
    his discretion to order surrender in accordance with the principles outlined in
Fischbacher
.  In my opinion, his decision was reasonable.

C.        DISPOSITION

[45]

For the reasons given, I would dismiss both the appellants appeal from
    committal and his application for judicial review of the Ministers surrender
    order.

RELEASED:

KMW                                             E.A.
    Cronk J.A.

SEP 27 2011                                  I agree K.M.
    Weiler J.A.

I
    agree David Watt J.A.





[1]

McLaughlin
involved an individual who was charged with the fraudulent
    use of a telecommunication facility without colour of right after using a
    computer to obtain access to internal programs contained within the same
    computer.  The Supreme Court essentially held that as the use of the computer
    for this purpose did not involve the transmission of information, that is, a
    telecommunication, the offence was not made out.


