



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Akinbobola, 2020
    ONCA 331

DATE: 20200529

DOCKET: C67225

Doherty, Simmons and Pardu JJ.A.

BETWEEN

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

Appellant

and

Tony Dada Akinbobola a.k.a.
    Lawrence D. Awoniyi a.k.a. Boss Tony a.k.a. Toyin

Respondent

Christopher Bundy, for the appellant

Jeff Marshman, for the respondent

Heard: In writing

On appeal from the order of Justice N.J.
    Spies of the Superior Court of Justice, dated June 27, 2019; reported at 2019
    ONSC 3434.

Doherty J.A.:


I



[1]

The Attorney General of Canada (AG), on behalf
    of the United States of America, sought the extradition of the respondent,
    (Tony Akinbobola), and Harry Cole on fraud-related charges. Mr. Cole was
    ordered committed for extradition. Mr. Akinbobola was discharged without
    prejudice to the AG, bringing a further application supported by additional
    evidence. The AG appeals from the discharge order pursuant to s. 55 of the
Extradition
    Act
, 1999, c. 18.

[2]

At the extradition hearing, Mr. Akinbobola
    acknowledged he was the person named in the U.S. charges and sought by the
    American authorities. He agreed the conduct alleged in the request for
    extradition constituted fraud under Canadian law. Mr. Akinbobola also accepted
    the evidence put forward in the record of the case (ROC) provided an
    evidentiary basis for a finding that several individuals had operated a large
    scale, somewhat sophisticated, fraudulent lottery scheme targeting elderly
    victims.

[3]

Mr. Akinbobola argued the ROC did not provide any
    evidence upon which it could be reasonably inferred he was complicit in the
    fraudulent lottery scheme. He maintained the evidence summarized in the ROC referred
    to some minimal non-specific connection between him and some of the fraudsters.
    However, the ROC provided nothing, other than unsubstantiated bald conclusions concerning
    Mr. Akinbobolas participation in the fraud.
Those conclusions could not constitute evidence identifying him as a
    participant in the fraud. Mr. Akinbobola maintained, at its highest, those
    conclusions suggest that others believed he was involved in the fraud.

[4]

The extradition judge accepted Mr. Akinbobolas submission.
    She concluded, at para. 49:

I cannot rely
    on bald assertions and I must be put in a position to assess the sufficiency of
    the evidence. Even looking at all the evidence, in the ROC with respect to Mr.
    Akinbobola, the sum of a series of nothings still equals nothing that I can
    rely on to make the order requested.

[5]

On appeal, the Attorney General of Canada contends
    the extradition judge made two reversible errors. First, she failed to give
    effect to the presumptive reliability of the properly certified evidence filed
    in the proceeding: see
Extradition Act
, s. 32(1)(a), s. 3(3). Second,
    the extradition judge failed to consider whether the evidence in the ROC,
    considered as a whole, reasonably supported an inference that Mr. Akinbobola
    was involved in the fraud. Counsel for the AG argues the trial judge
    erroneously examined individual pieces of evidence in isolation from each
    other. Furthermore, she conducted that examination using a standard more
    appropriate to a criminal trial than an extradition proceeding.

[6]

Counsel for Mr. Akinbobola submits the extradition
    judge did not question the reliability of the evidence in the ROC. She did,
    however, correctly draw a distinction between the parts of the ROC summarizing things
    done and observed by potential witnesses and those parts of the ROC containing
    bald
,
unsourced conclusory
    statements. Counsel contends the extradition judge properly held the latter had
    no evidentiary value and could not be relied on to justify the committal of Mr.
    Akinbobola for extradition.


II



The Relevant Statutory Provisions

[7]

Documents contained in a properly certified ROC
    are admissible as evidence in an extradition proceeding:
Extradition Act
,
    s. 32(1)(a), s. 33(3). The extradition judge must commit for surrender if the
    evidence, which by definition includes the contents of the ROC, would justify
    committal for trial in Canada on the offence set out :
Extradition Act
,
    s. 29(1)(a).

[8]

An extradition judge cannot commit for
    extradition if the evidence as a whole does not permit the drawing of the
    inferences necessary to establish a
prima face
case.
The absence of a link in a
circumstantial evidentiary chain will mean that a reasonable trier could not
    convict, and extradition must be refused: e.g. see
U.S.A. v. Viscomi
,
    2015 ONCA 484;
The U.S.A. v.
Huynh
, 2005
    ONCA 305.

[9]

An extradition judge also has the power to
    engage in a limited weighing of the evidence, as explained in
R. v. M. (M.)
,
    2015 SCC 62, at para. 40:

Thus, where the evidence is so defective or
    appears so unreliable that the judge concludes it would be dangerous or unsafe
    to convict, then the case is considered insufficient for committal.

[10]

I do not think the extradition judge engaged in
    the limited weighing envisioned in
R. v. M. (M.)
. Instead, the
    extradition judge held the bald assertions in the ROC attributed to an individual
    involved in the fraudulent scheme had no evidentiary value, absent
    identification in the ROC of the basis for the assertion. Without any explanation,
    the assertions could not connect Mr. Akinbobola to the fraud. On the extradition
    judges analysis, the ROC did not contain the all important explanation
    underlying the assertions made by the accomplice. Without that explanation, the
    assertions had no evidentiary value. The extradition judge saw this as a case
    in which there was no evidence in respect of Mr. Akinbobolas participation in
    the offence, rather than one in which there was evidence, but it was so
    defective or unreliable as to be unable to withstand even the limited weighing
    described in
R. v. M. (M.)
.


III



the contents of the roc

[11]

The anticipated evidence summarized in the ROC
    outlined the investigation conducted by the American authorities, the nature of
    the lottery scheme fraud, and identified various individuals said to be
    connected to the fraud. The ROC identified Stephen Omowaiye as a participant in
    the fraud. According to the ROC, he had pled guilty and had been sentenced in
    Texas. It was anticipated that he would testify in the American proceedings.
    Most of the information contained in the ROC referable to Mr. Akinbobola is
    attributed to Mr. Omowaiye. I will focus on that part of the ROC in my reasons.

[12]

The ROC described Mr. Omowaiyes role in the
    fraud and his connection to various other individuals involved in the fraud. Mr
    Omowaiye was brought into the fraud by Mr. Cole and another man. He took orders
    primarily from Mr. Cole. Over time, Mr. Omowaiye became intimately involved in
    virtually every aspect of the ongoing fraud.

[13]

Mr. Omowaiye met Mr. Akinbobola on one occasion.
    Mr. Cole was present. There was no evidence about any discussions at that
    meeting.

[14]

The ROC indicates that Mr. Omowaiye will testify
    to the following:

·

Mr. Cole gave him instructions on multiple
    occasions to wire proceeds of the fraud to a bank account controlled by Mr. Akinbobola
    in Canada (ROC, paras. 15, 45);

·

he was one of the main record keepers for Mr.
    Cole and was responsible for keeping track of amounts owed to various people
    who were assisting in the fraud. In that capacity, he came to know Mr. Akinbobola
    was paid money for his participation in the fraud (ROC, para. 17);

·

he knew Mr. Akinbobola worked as a closer for
    Mr. Cole, prepared scam mailers and, on behalf of Mr. Cole, received funds generated
    by the fraud, sent to Canada (ROC, para. 19);

·

on one occasion, he mailed four money orders to Canada.
    On the same day, he mailed a package to Tony Akinbobola in Ontario, Canada. All
    four money orders were deposited into the account that Mr. Omowaiye had been
    told was controlled by Mr. Akinbobola (ROC, paras. 45, 50);

·

Mr. Omowaiye
    used a certain email address to communicate with Mr. Akinbobola. He used that
    email address to alert Mr. Akinbobola to deposits of funds into the account Mr.
    Cole had indicated to Mr. Omowaiye was controlled by Mr. Akinbobola. Mr. Cole
    also communicated with that email address on many occasions.
Postal records tied that email address to packages mailed by
    victims of the fraud from various locations
in the United States
. The packages contained money sent
    by the victims in response to the false representations (ROC, para. 47, 48, 49);
    and

·

Mr.
    Omowaiye regularly communicated with Mr. Akinbobola, utilizing a certain mobile
    phone number. The person he communicated with identified himself in text
    messages as the operator of a certain business. This was the business that Mr.
    Cole had told Mr. Omowaiye was controlled by Mr. Akinbobola. In another text
    message, the sender of the message identified himself by name as Mr. Akinbobola
    with an address in Mississauga. Mr. Omowaiye sent other text messages to the
    same mobile phone number, referring to various steps taken in furtherance of
    the fraud. For example, one text message alerted Mr. Akinbobola to the new
    alias Mr. Omowaiye was using in his communications with victims of the fraud
    (ROC, para. 52).

[15]

The extradition judge went through the ROC. She
    ultimately held that there was no evidence connecting Mr. Akinbobola to the
    bank account in which Mr. Omowaiye deposited some of the proceeds of the fraud.
    She said, at para. 46(c):

There is no
    information as to how Mr. Omowaiye knows that the TTR account was in the name
    of Mr. Akinbobola or controlled by him.

[16]

With respect, this is a misreading of the
    relevant part of the ROC. It reads:

Omowaiye will testify that he also deposited
    victim funds into bank accounts and wired victim funds, following instructions
    by Cole and Ajayi. Sometimes those bank accounts were in Canada and controlled
    by Cole or Ajayi. Sometimes independent unlicensed money transmitters would
    receive the money from Omowaiye in U.S. bank accounts and then use foreign bank
    accounts to send money to Cole and Ajayi.
Omowaiye was
    given instructions by Cole to wire victim proceeds to bank accounts controlled
    by Akinbobola specifically TTR African Foods Plus  on multiple occasions
.
    [Emphasis added.]

[17]

I read para. 15 as identifying Mr. Cole, the
    prime mover in the fraud, as having told Mr. Omowaiye that the account was
    controlled by Mr. Akinbobola. While this evidence may be hearsay in the trial
    context, its hearsay quality does not affect its use in the context of an
    extradition proceeding: see
U.S.A. v. Yang
(2001), 56 O.R. (3d) 52, at para.
11.

[18]

Apart from identifying Mr. Cole as the
    source of Mr. Omowaiyes information connecting Mr. Akinbobola to a specific
    bank account, the ROC provided additional insight into how Mr. Omowaiye came to
    know about Mr. Akinbobolas participation in the fraud. The ROC describes Mr.
    Omowaiyes involvement in the scheme at length. Based on that involvement, he
    was well positioned to know who the other participants in the scheme were, and
    the various functions they performed. Mr. Omowaiye was closely connected to Mr.
    Cole, who was apparently in charge of the scheme. Mr. Omowaiye also identified himself
    as one of the main record keepers. Performing that role gave Mr. Omowaiye the
    opportunity to know how the money flowed from the fraud and to whom it flowed, both
strong

indicators of the participants in the fraud.


[19]

Mr.
    Omowaiyes claim that he was communicating with Mr. Akinbobola in furtherance
    of the fraudulent scheme is supported by the evidence that the other
    participant in the text messages identified himself as Mr. Akinbobola on at
    least one occasion. He also indicated that he was the person who controlled a
    specific company. This was the same company Mr. Cole had indicated to Mr. Omowaiye
    was controlled by Mr. Akinbobola.


[20]

Counsel for
    Mr. Akinbobola submits Mr. Omowaiyes evidence about his clients involvement in
    the fraud is similar to an opinion offered by an investigator as to someones
    involvement in a fraud. With respect, the detailed description of Mr.
    Omowaiyes ongoing involvement in the fraud, as described in the ROC, puts him
    in a qualitatively different position than the police officer referred to in
    counsels argument. The police officer offers an opinion about the involvement of
    others based on a review of available documentation. Mr. Omowaiye offers his evidence,
    having been deeply involved in the scheme as it operated:
see
U.S.A. v. Yang
, at para. 63.


IV



conclusion

[21]

The extradition judge wrongly removed much of
    Mr. Omowaiyes anticipated evidence from the evidentiary mix when considering
    whether there was a sufficient basis upon which to commit Mr. Akinbobola for
    extradition.
The references in Mr.
    Omowaiyes anticipated evidence to Mr. Akinbobolas participation in the fraud
    were more than bald assertions. Read as a whole, the ROC provided a basis upon
    which a reasonable trier could conclude that Mr. Akinbobola participated in the
    fraud described in the ROC.


[22]

The
    extradition judges analysis, and counsel for Mr. Akinbobolas submissions, may
    lay bare shortcomings in the prosecution case as it is laid out in the ROC. To
    the extent those shortcomings exist, they are properly addressed in another forum,
    in another jurisdiction.

[23]

I would allow the appeal, set aside the order of
    discharge, and make an order committing Mr. Akinbobola for extradition on the
    charge.

Released:
DD
MAY 29 2020

Doherty J.A.

I Agree Janet Simmons J.A.

I Agree G. Pardu J.A.


