United States of America v. Orphanou

United States of America v. Orphanou Collection Decisions of the Court of Appeal Date 2011-09-27 Neutral citation 2011 ONCA 612 Docket numbers C52143, C52909 Judges Weiler, Karen Merle Magnuson; Cronk, Eleanore Ann; Watt, David Subject Criminal Decision Content 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 Minister’s 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. Plunkett’s lengthy history of criminal conduct. The appellant maintains that without Mr. Plunkett’s 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 statute’s 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 court’s 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 appellant’s 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 Parliament’s 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 General’s 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 appellant’s 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 General’s amendment motion. Contrary to the appellant’s 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 General’s submission that the credibility or ultimate reliability of Mr. Plunkett’s 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 Canada’s 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 judge’s 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 appellant’s 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. Plunkett’s 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 appellant’s challenge to the sufficiency of the identification evidence at the extradition hearing. Mr. Plunkett’s anticipated trial evidence, as outlined in the ROC and described above, together with the extradition judge’s 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 appellant’s attack on the Minister’s 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 state’s 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 General’s submission that ordering the appellant’s 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 appellant’s appeal from committal and his application for judicial review of the Minister’s 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.