Extradition is political and the courts have limited ability to intervene: lawyer
The Ontario Court of Appeal has dismissed a judicial review of the Minister of Justice’s decision to extradite a Canadian citizen to the United States to face prosecution for his role in a conspiracy to defraud elderly victims through a sweepstakes scheme that allegedly caused losses of over $900,000 primarily to residents of Texas.
In the United States v. Akinbobola, the appeal court upheld the justice minister’s decision to surrender Akinbobola, finding that his analysis of whether surrender would be contrary to the accused’s rights under the Canadian Charter of Rights and Freedoms was reasonable and without error.
“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.”
Ian McLeod, a senior advisor for the Department of Justice media relations, says the court’s decision is consistent with Canada’s position on the issue. “The Court applied long-standing principles of extradition law and judicial review to the facts of this case. The decision simply reaffirms those existing principles.”
The appellant’s lawyer, Jeff Marshman, says the court’s decision reflects the hands-off approach that courts have to the decisions made by the minister and a function of the legislation and how extradition law works. Marshman says Akinbobola, if convicted in the United States, faces a sentence wildly outside of the “ballpark” for what he would receive in Canada and is completely unfit by Canadian standards.
“It’s a very disappointing result for Akinbobola’s family and community.”
Based on advice from the Public Prosecution Service of Canada and the Attorney General of Ontario, Akinbobola would likely receive a global sentence between 6 and 8 years. The minister noted that although U.S. sentencing guidelines indicate 24-30 years, that range presumes consecutive rather than concurrent sentences. However, the U.S. Department of Justice advised that enforcing consecutive sentences is discretionary.
Marshman says extradition is political and the courts have restricted authority to intervene in these cases. “The case reflects the limited power that the court has in extradition cases and that the Department of Justice and the Minister is not particularly concerned about the very significant disparity in sentencing between Canada and the United States.”
The sweepstakes scheme involved informing elderly residents that they were winners of a sweepstake and should contact the applicant, who convinced the victims to deposit a cheque of $8,000 and send cash or money orders to receive their larger prize.
Akinbobola, a 51-year-old convention refugee from Nigeria who has lived in Canada for 20 years, allegedly prepared the sweepstakes letters, took calls from victims, received and forwarded the funds, and operated entirely in Ontario from March to October 2015.
The United States sought his extradition for prosecution, and at the judicial process, he was discharged from committal by the Superior Court of Justice.
Following an appeal by the Attorney General of Canada, the appeal court ordered Akinbobola’s committal on May 29, 2020, to await a decision from the Minister of Justice. The minister ordered the surrender, concluding that it would not violate Akinbobola’s rights under the Charter and would not be unjust or oppressive.
Akinbobola sought a judicial review arguing that the minister erred in assessing whether the extradition violates his right to remain in Canada under s. 6 of the Charter and concluding that under s. 7, his surrender given the sentencing disparity would be a deprivation of liberty contrary to fundamental justice.
He also argued that his surrender would be unjust or oppressive, and the minister’s decision was unreasonable because his role in the scam was minor, time-limited, and non-violent and therefore excessive to face a sentence of 24-30 years, mainly because the sentencing range for a comparable crime committed in Canada is drastically lower.
The minister disagreed with the sentencing disparity and noted that the other individuals involved in the same criminal enterprise got eight to 14 years in prison after entering guilty pleas. He also argued that a sentence is not unjust or oppressive simply because the applicant would get less time if prosecuted domestically. Canada (Justice) v. Fischbacher, 2009; USA v. Ranga, 2012
He rejected Akinbobola’s role as a minor offence considering the principles guiding an extradition based on comity and fairness to cooperating states, which is that “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 the harms were experienced.”
The appeal court also held in France v. Diab that the test for refusing surrender on s. 7 grounds is strict and only in exceptional cases where surrender to the requesting state would shock Canadians’ conscience and be simply unacceptable.
Akinbobola asserted that the minister’s decision allowing him to face a potential sentence of 24 to 30 years would shock the conscience of Canadians. However, the court wrote that the standard for setting aside the minister’s decision as a violation of s. 7 is demanding and not satisfied by a sentencing disparity of this nature.
The court agreed with the minister that whether a potential sentence is severe enough to be fundamentally unjust is not determined by comparing the relative length in a foreign and domestic penalty.
While the minister has the discretion to refuse an unjust and oppressive surrender even without a Charter breach, the court wrote that Akinbobola failed to identify any case law where the length of the foreign sentence constituted extreme punishment that violated s. 7.
