



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Cole, 2020 ONCA
    420

DATE: 20200707

DOCKET: C67210

Doherty, MacPherson and Benotto
    JJ.A.

BETWEEN

The Attorney General of Canada
on Behalf of the United States of America

Respondent

and

Harry Cole, a.k.a. Akintomide Ayoola
    Bolu,
a.k.a. John King, a.k.a. Big Bro, a.k.a. Egbon

Appellant

Mark C. Halfyard, for the appellant

Heather J. Graham, for the respondent

Heard: In writing

On appeal from the order of committal entered
    by Justice Nancy J. Spies of the Superior Court of Justice, dated June 27, 2019,
    reported at 2019 ONSC 3434.

REASONS FOR DECISION

[1]

This is an appeal from an order committing the
    appellant for extradition to the United States on fraud charges. The background
    and evidence produced at the extradition hearing are summarized by the
    extradition judge and need not be repeated here: see
United States of
    America v. Akinbobola and Cole
, 2019 ONSC 3434.

[2]

The appellant submits the extradition judge made
    two errors. First, the appellant argues the trial judge erred in holding the
    requesting state had established that the person sought by the requesting state
    was the person before the court. Second, the appellant submits the evidence identifying
    the appellant as the Harry Cole, who orchestrated the fraud, was manifestly
    unreliable and could not satisfy the test for committal set down in s. 29 of
    the
Extradition Act
, S.C. 1999, c. 18 (the Act).

A.

was the person sought by the united states, the
    person before the court?

[3]

The requesting state must demonstrate on the
    balance of probabilities the person before the court is the person sought for
    extradition. At the extradition hearing, counsel for the appellant conceded,
    more than once, that the identity of his client as the person sought for
    extradition was not an issue. The extradition judge acknowledged this
    concession in her reasons: see para. 6. The concession is enough to dispose of
    this ground of appeal.

[4]

In any event, the extradition judge did consider
    whether the requesting state had demonstrated the person before the court was
    the person sought for extradition. She referred to and considered the factors
    identified in s. 37 of the Act (reasons, paras. 52-54) and concluded, at para.
    55:

I am satisfied on the balance of probabilities
    that the Harry Cole before me is the person sought by the U.S.A.

[5]

Even if counsel had not conceded the point on
    behalf of the appellant, there would be no reason to interfere with the
    extradition judges finding.

B.

Was the evidence identifying the appellant as a
    participant in the fraud manifestly unreliable?

[6]

The Record of the Case (ROC) summarized
    evidence from three different individuals who were intimately involved in the
    perpetration of the alleged fraud. They testified they had met with Harry
    Cole and repeatedly taken instructions from that person about the fraud. They
    regarded Harry Cole as the prime mover in the fraud. The three individuals
    all identified a photograph as a photograph of the person they knew as Harry
    Cole, the person giving them instructions in respect of the commission of the
    fraud.

[7]

The extradition judge observed the appellant in
    the courtroom. The appellant also had the name Harry Cole. The extradition
    judge indicated he looked similar to the person identified by three individuals
    as the Harry Cole, as the mastermind of the fraud.

[8]

On its face, the identification evidence is more
    than ample to justify the committal for trial of a person charged with an
    offence in Canada. The appellant attempts to bring the evidence within the
    limited exception which acknowledges that evidence which would otherwise
    justify a committal cannot do so where the record demonstrates the manifest
    unreliability of the evidence.

[9]

There is no reason to describe the
    identification evidence given by the three witnesses in this case as manifestly
    unreliable. They were describing a person whom they had met at a meeting for
    the purpose of joining and participating in the fraudulent scheme. The
    circumstances were not such as to suggest their identification of the appellant
    was manifestly unreliable.

[10]

The appeal is dismissed.

Doherty
    J.A.

J.C.
    MacPherson J.A.

M.L.
    Benotto J.A.


