)) THE ATTORNEY GENERAL OF CANADA Applicant – v. –, 2010 ONSC 2153

CITATION : Attorney General of Canada on Behalf of The United States of America v. Alex Orphanou a.k.a. Alexos Orphanou, 2010 ONSC 2153 COURT FILE NO.: 27/08 DATE: 20100428 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 29 OF THE EXTRADITION ACT FOR THE COMMITTAL OF ALEX ORPHANOU a.k.a. ALEXOS ORPHANOU TO AWAIT SURRENDER TO THE UNITED STATES OF AMERICA BETWEEN: )) THE ATTORNEY GENERAL OF CANADA Applicant – and – ALEX ORPHANOU a.k.a. ALEXOS ORPHANOU Respondent )) )) )) )) ) ) Richard Kramer , for the Attorney General of Canada Gregory Lafontaine , Lori Anne Thomas for the Respondent and Person Sought HEARD: April 9, 19, and 28, 2010 J.WILSON J. RULING Overview [ 1 ] This is an extradition proceeding. On June 9, 2008, the Minister of Justice issued an Authority to Proceed, pursuant to

section 15 of the Extradition Act , authorizing the Attorney General of Canada (the “Applicant”) to seek an Order for the committal of Alex Orphanou, also known as Alexos Orphanou (Mr. Orphanou). He is sought by the United States of America for prosecution for the equivalent Canadian offence of fraud, contrary to section 380(1) (

a) of the Criminal Code . [ 2 ] There have been many delays and this hearing is preemptory to Mr. Orphanou. [ 3 ] Mr. Orphanou is wanted in Pennsylvania for his alleged supervision and participation in a telemarketing fraud involving some 30,000 victims from the United States and approximately $7,000,000 US dollars. The U.S. alleges that Mr. Orphanou fraudulently telemarketed credit cards to victims in the U.S. through a telemarketing “boiler room” he maintained in Toronto, Ontario. His employees offered U.S. residents guaranteed credit cards in exchange for a fee.

The targeted victims were those with a poor credit rating who had been previously denied a credit card. Some received a package with applications for credit cards, and information about how to improve their credit rating. Neither Mr. Orphanou nor his companies were authorized to market the credit cards. None of the victims ever received the credit cards as promised. Through a series of transactions, Mr. Orphanou used or deposited the fees collected into companies controlled by him.

The Extradition Act and the role of the court in extradition proceedings [ 4 ] The Extradition Act, S.C. 1999, c.E-18, as amended (the Act ) divides responsibilities between the Minister of Justice and the courts in extradition matters into three distinct phases.

First, after receiving an extradition request from an extradition partner, the Minister decides whether to issue an Authority to Proceed in accordance with s. 15 of the Act , based on the requirements set out in s. 3(1), namely that the conduct, had it occurred in Canada, would have constituted an offence which is punishable in Canada by a term of two years or more (subsections (

a) and (b)). Second, if an Authority to Proceed is issued, an extradition judge holds a hearing to decide whether to commit the person sought for extradition in accordance with ss. 24 and 29 of the Act . Third, if the person sought is

committed for extradition by the court, the Minister decides whether to surrender the person sought to the extradition partner in accordance with ss. 40, and 44-48 of the Act . [ 5 ] The fundamental distinction between the ministerial and judicial domains was articulated by Justice Watt in Germany v. Schreiber , [2000] O.J. No. 2618 (Sup. Ct) (QL), at para. 72 : Under the Act, the Minister and the extradition judge occupy two different solitudes. The Minister has a role at the beginning and at the end of the extradition process. The judge discharges his or her function in the middle.

Each operates independently of the other, except to the extent that the Minister’s final involvement is contingent on a judicial order for committal. Neither intrudes into the other’s area of responsibility. Neither reviews the other’s determination or decision. The reviewing tribunal is the provincial court of appeal . [ 6 ] In the third phase, the person sought is entitled to make submissions to the Minister in respect of his or her decision.

The Minister’s decision is reviewable by the Court of Appeal and subject to Charter scrutiny, since the executive is duty bound to act in accordance with the dictates of the Charter .

The person sought may appeal a committal order and seek judicial review of a surrender order in accordance with the Act and may, with leave, appeal the Court of Appeal’s decision on both committal and surrender to the Supreme Court of Canada. [ 7 ] Subsection 24(1) of the Act requires the court to hold an extradition hearing upon receipt of an Authority to Proceed. [ 8 ] This Court’s statutory task as defined in section 29(1) of the Act is as follows: 29.

(1) A judge shall order the committal of the person into custody to await surrender if: (

a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and [ 9 ] First, I must determine whether there is evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the Authority to Proceed.

The court in this first phase plays a similar role to a judge making a determination whether there is sufficient evidence to commit an accused to trial in a preliminary hearing. According to R. v. Arcuri , 2001 SCC 54 , [2001] 2 S.C.R. 828, if the Crown is relying on circumstantial evidence, the evidence presented must be reasonably capable of supporting the inferences that the Crown asks the jury to draw.

The judge does not make a determination of guilt, and asks only “whether the evidence, if believed, could reasonably support an inference of guilt” (at para. 23). [ 10 ] It is not my task to draw factual inferences, or assess credibility. The judge does not consider the law of the foreign state, the nature of the charges in the foreign state, the foreign charging document, or the jurisdiction of the foreign state to prosecute. [ 11 ] Second, in accordance with section 29(1) (

a) I must be satisfied on a balance of probabilities that Mr. Orphanou is the person sought by the extradition partner. [ 12 ] The jurisdiction of the extradition judge is statutory and limited. In the statement from Republic of Argentina v. Mellino, 1987 CanLII 49 (SCC) , [1987] 1 S.C.R. 536, at para. 29 the Supreme Court of Canada stated: …the role of the extradition judge is a modest one; absent express statutory or treaty aut horization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed.

Issues Raised by the Defence [ 13 ] The defence opposes the Crown’s request for an order for extradition and makes the following arguments: 1. The original copy of the Authority to Proceed has not been filed with the court as an exhibit. The defence argues that this court is without jurisdiction to hear the extradition hearing without the original document being filed. 2. There is evidence filed on behalf of eight alleged victims, who each paid the sum of $199 US and did not receive the promised credit card. The corresponding Canadian offence relied upon is fraud over $5000.00.

The defence suggests that based upon the limited number of victims, and in the absence of evidence that these eight victims are only a sample of a larger pool of victims, there is no evidence of fraud over $5000. 3. With respect to the evidence of the eight victims, and Jasen Plunkett, the defence asserts that it is not appropriate to take the bald assertion of a witness without details of the source of the information or belief as adequate evidentiary proof for the purpose of an extradition hearing. Furthermore, the defence argues that the evidence of Mr. Plunkett is unreliable. 4.

There is no adequate direct evidentiary link between the operations at the telemarketing location and Mr. Orphanou establishing by reasonable inference that Mr. Orphanou knew that the operations were fraudulent. 5. The evidence of Mr. Plunkett is crucial in determining the identity of the person sought. Because Mr. Plunkett is a person of low moral character with an extensive criminal record and his evidence is without corroboration, his evidence does not meet the burden of proof on a balance of probabilities that the person sought is Mr. Orphanou. Issues Raised by the Crown

[ 14 ] The Crown raises one issue. In light of the argument that there is evidence of only eight victims, and that the fraud on these eight victims is less than $5000, the Crown seeks to amend the Authority to Proceed pursuant to section 23(2) of the Act . They seek to delete subsection (

a) from “Fraud, contrary to section 380(1) (

a) of the Criminal Code ” in the Authority to Proceed so that it reads: “Fraud, contrary to section 380(1) of the Criminal Code . ” The effect of this amendment would be to include the offence of fraud under $5000 rather than restrict the offence to fraud over $5000.00. Evidence summarized in the record of the case [ 15 ] The allegations in relation to Mr. Orphanou are set out in the record of the case which is the document summarizing the evidence available for trial in the U.S. The original of the record of the case has been filed. [ 16 ] The evidence against Mr. Orphanou summarized in the record of the case includes: (

i) the testimony of a former employee of First Federal, Sankya Luque; (ii) the testimony of a former employee of Federal Credit, Jasen Plunkett; (iii) the testimony of eight victims of the scheme; (iv) the testimony of the owners of two Debit Processors including EFT Network and First American; (

v) documents obtained from various US financial institutions; (vi) documents obtained from various commercial mail receiving agents and the US Postal Service; (vii) the testimony of an associate of Mr. Orphanou, Roger Carman; and (viii) the testimony of representatives of MasterCard and Visa. Overview [ 17 ] It is alleged that, from at least February 1999 through August 2002, Mr.

Orphanou participated with others and was the mastermind in a massive telemarketing fraud scheme by operating a series of four telemarketing companies that he incorporated in the State of Delaware, including Federal Credit Services Ltd. (“Federal Credit”), First Federal Benefit LLC (“First Federal”), Key Nation Benefit LLC (“Key Nation”), and Pacific First Benefit LLC (“Pacific First”). [ 18 ] Employees of the above-named companies, at Mr. Orphanou’s direction, telephoned U.S. residents from a “boiler room” maintained by Mr. Orphanou located in Toronto, Canada.

The calls were unsolicited “cold calls.” The victims were offered a “guaranteed” credit card for a one-time fee that ranged from approximately $179 to $199 US dollars. During the calls, the telemarketers obtained the U.S. residents’ bank account information under the pretext that this was needed in order to obtain the guaranteed credit card. [ 19 ] Mr.

Orphanou had established accounts with various accredited clearing houses and debit processors in the United States, including EFT Network and First American Payment Processing (the Debit Processors). [ 20 ] Employees of Federal Credit, First Federal, Key Nation, and Pacific First provided the Debit Processors with the US residents’ names and banking information. The Debit Processors would electronically debit the agreed upon fee directly from the US residents’ accounts and, after a brief hold-back period, transfer the funds to various corporate bank accounts controlled by Mr.

Orphanou. [ 21 ] Records obtained from the Debit Processors indicate that, from February 1999 to August 2002, Federal Credit, First Federal, Key Nation, and Pacific First initiated thousands of clearing house debits totalling approximately $7 million US dollars from US residents. Based upon the number of transactions and the fees collected, this translated into approximately 30,000 victims. [ 22 ] Mr. Orphanou established bank accounts in the U.S. under the company names Federal Credit, First Federal, Key Nation, and Pacific First in order to accept funds from the Debit Processors. [ 23 ] Mr.

Orphanou would then either write cheques for payment of services provided to Federal Credit, First Federal, Key Nation, and Pacific First that furthered the telemarketing fraud scheme, or transfer the money electronically into bank accounts opened and maintained by him in the name of various corporations controlled by him in Canada. [ 24 ] None of the U.S. residents who were offered a “guaranteed” credit card ever received one.

Some victims received written credit manuals containing information on how to repair poor credit. [ 25 ] The telemarketers did not have the authorization to provide the promised MasterCard or Visa credit cards. Testimony of Former Employees [ 26 ] Jasen Plunkett will testify that he worked at various advance fee/credit card telemarketers in Toronto and was a former employee of Federal Credit, a company established and run by Mr. Orphanou in 1998. In 1999 the Federal Credit offices moved to the second floor of 164 Eglinton Avenue East in Toronto, Ontario. Mr.

Orphanou directed telemarketers at Federal Credit to contact individuals in the U.S. known to have been previously denied credit cards and offer them guaranteed credit cards if they had an existing bank account and paid an advance fee of between $179 and $199 US dollars.

[ 27 ] Mr. Orphanou was the person who obtained the names and telephone numbers of the potential customers, referred to as “leads.” Mr. Orphanou established the accounts with the companies and did the electronic debiting of the accounts. [ 28 ] Mr. Plunkett will also testify that Mr. Orphanou and the managers of Federal Credit knew the telemarketers were falsely telling customers that they would be receiving a credit card after paying the advance fee. Mr.

Orphanou and Federal Credit did not have any contracts with banks to supply credit cards and instead provided customers with a “benefits” package that included information on how to repair bad credit rating and various applications and coupon books. [ 29 ] Mr. Plunkett was aware that after discontinuing the use of the name Federal Credit, Mr. Orphanou continued operating a credit card telemarketing company under a new corporate name at the same location. Mr. Plunkett also provided authorities with sales scripts that were used at Federal Credit, copies of which are included in the record of the case.

The sales scripts confirm the guarantee of the credit card in exchange for a fee. [ 30 ] Mr. Plunkett has positively identified Mr. Orphanou as the person involved in the telemarketing program after being shown a photograph of him during his August 20, 2003, interview in Harrisburg, Pennsylvania. This photograph is attached as Exhibit 3 to the record of the case. [ 31 ] Sankya Luque will testify that she was a former employee of First Federal and worked there for approximately 3 days during August 2000.

She was provided with a sales script that announced that the consumer had been approved for a MasterCard credit card and that they would have to provide their banking information. If the consumer provided the requested banking information, the call was then transferred to a supervisor in the centre. There were between 20 to 30 people working at the call centre which was located on Eglinton Ave. in Toronto, Ontario. Ms. Luque’s evidence is that a credit card was being sold over the telephone. Victim witness testimony [ 32 ] Eight separate victims to the fraud will testify, all of whom are U.S. residents.

Each victim will testify that they received an unsolicited telephone call from a representative from one of the four telemarketing companies referred to above. Each victim was offered a guaranteed Visa or MasterCard credit card in exchange for a one time fee ranging between $179 and $199 US. Each victim provided their bank account information to the telemarketer, and each subsequently received a package through the mail containing only credit card applications or literature about how to improve a credit rating. None of the eight victims ever received the promised credit card.

Testimony and documents of the Debit Processors [ 33 ] Representatives of EFT Network and First American will testify that the ACH Debit Accounts were opened and maintained by Mr. Orphanou under the various company names including: Federal Credit, First Federal, Key Nation, and Pacific First. These representatives have provided U.S. prosecutors with a wide variety of supporting documentation including ACH processing agreements signed by Mr. Orphanou who lists himself as the “Pres” (President) as well as bank account information for the various telemarketing companies listed above.

The Debit Processors will testify that, over the period of 2000 to 2002, they processed almost $7,000,000 US in debit charges on behalf of these companies, and deposited the monies into the bank accounts designated by Mr. Orphanou. Documents from US financial institutions [ 34 ] The US Postal Inspection Service obtained numerous documents from Mellon Bank and Bank of America in relation to both First Federal and Pacific First that will be introduced at trial. These include account signature cards signed by Mr. Orphanou as well as documentation confirming that Mr.

Orphanou held a 100% interest in First Federal and Pacific First. The banks will provide account statements for the period between January 2001 and May 2002 showing total deposits (less reversals) of just under $9,000,000 US and a number of cheques written by Mr. Orphanou to various numbered Ontario corporations controlled by Mr. Orphanou. Commercial mail receiving agents and the US Postal Service [ 35 ] The US Postal Service obtained documents from various Commercial Mail Receiving Agencies (commonly referred to as “mail drops”). Each of these mail receiving accounts was opened by Mr. Orphanou.

This procedure would give the appearance that the business was located in the US and mask that the telemarketers were located in Canada. Postal records demonstrate that Mr. Orphanou established a P.O. box located in Buffalo, N.Y. under the company names Federal Credit Services and Federal Credit Card Services. [ 36 ] Postal records also include consumer complaints filed against Federal Credit, Pacific First, and Key Nation. These complaints have postal addresses for these companies that actually correspond to various mail receiving/forwarding agencies. [ 37 ] One mailing agency has produced documents showing Mr.

Orphanou entered into agreements to have mail received on behalf of both Federal Credit and Key Nation forwarded to 164 Eglinton Ave., E., Suite 200, in Toronto, ON, which is the address identified by Mr. Plunkett as the telemarketing “boiler room.” [ 38 ] In the case of Pacific First, a mailing agency employee is expected to testify that a representative of that company who identified himself as “Robert Taylor” entered into a mail receiving/forwarding contract over the telephone and provided an address for Pacific First of 164 Eglinton Ave., E., Suite 200, in Toronto, ON.

Again, this is the address confirmed as the telemarketing boiler room.

Evidence of Roger Carman [ 39 ] Roger Carman is a resident of Albuquerque, New Mexico. He will testify that he was introduced to Mr. Orphanou through a mutual business associate in Toronto and that Mr. Orphanou contacted him by telephone. Mr. Orphanou asked Mr. Carman to establish a mailing address in the US, under the name Key Nation, on his behalf for approximately $400 US per month. Mr. Carman will testify that he was told to forward any mail received at box 90370 for Key Nation to Mr. Orphanou at a Toronto address. In December 2001, at Mr. Orphanou’s request, Mr.

Carman opened a second post office box under the name Pacific First. Mr. Carman will testify that he opened the two post office boxes and forwarded all mail received at them to Toronto, as instructed by Mr. Orphanou. [ 40 ] U.S. Postal Service records show that PO Box 90370 was opened on February 1, 2001, under the name Key Nation Benefit and PO Box 10400 was opened on December 26, 2001, under the name Pacific First Benefit. Both are located at a post office in Albuquerque, New Mexico. Both were opened by Roger Carman.

Evidence from MasterCard and Visa [ 41 ] Representatives of Visa and MasterCard will testify that neither Mr. Orphanou nor the companies First Credit, First Federal, Key Nation, or Pacific First have ever been licensed to market or solicit Visa or MasterCard credit cards. Does the evidence in the record of the case justify committal for fraud? [ 42 ]

Section 32 of the Act sets out the type of evidence admissible at the committal hearing. Specifically, documents contained in the record of the case that have been properly certified are admissible, whether or not they are solemnly affirmed or under oath. This is an evidentiary regime quite different from the rules of evidence applicable in domestic criminal proceedings: 32

(1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law: (

a) the contents of the documents contained in the record of the case certified under subsection 33(3); (

b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and (

c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted. [ 43 ]

Section 33 sets out the requirements of the record of the case: 33 ( 1 ) The record of the case must include (

a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution…

(2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.

(3) A record of the case may not be admitted unless (

a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and (

i) is sufficient under the law of the extradition partner to justify prosecution, or (ii) was gathered according to the law of the extradition partner; or (

b) in the case of a person sought for the imposition or enforcement of a sentence, a judicial, prosecuting or correctional authority of the extradition partner certifies that the documents in the record of the case are accurate.

(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

(5) For the purposes of this section, a record of the case includes any supplement added to it. [ 44 ] The documents submitted in the record of the case are certified to be in conformity with the provisions of the Act , and therefore , the enquiry into admissibility is complete. The Charge [ 45 ] The charge in the Authority to Proceed is Section 380(1) (

a) of the Criminal Code which provides:

380 ( 1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars [ 46 ] The constituent elements of fraud were discussed by the Supreme Court of Canada in R. v. Theroux , 1993 CanLII 134 (SCC) , [1993] 2 S.C.R. 5 at para. 27 . The actus reus of fraud is established by proof of: 1. the prohibited act, be it

an act of deceit, a falsehood, or some other fraudulent means; and 2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk. Correspondingly, the mens rea of fraud is established by proof of: 1. Subjective knowledge of the prohibited act; and 2.

Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk). [ 47 ] In Théroux , McLachlin J., (as she then was), discussed the mens rea requirement as follows at para. 23: …the Crown need not, in every case, show precisely what thought was in the accused’s mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference .

The fact that such an inference is made does not detract from the subjectivity of the test. …The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete. [Emphasis added] Arguments raised by the defence Issue 1.

Does this court require the original Authority to Proceed to maintain its jurisdiction? [ 48 ] The original copy of the Authority to Proceed has not been filed with the court as an exhibit. The defence argues that this court is without jurisdiction to hear the extradition matter without filing the original document. The Crown filed a memorandum dated June 10, 2008, from the Department of Justice to the Extradition team leader for Ontario (the June 10, 2008 Memorandum) as Exhibit 3.

The memorandum confirms that the original and two copies of the record of the case and a photocopy of the Authority to Proceed were provided. [ 49 ] Counsel for the Applicant advises that the original Authority to Proceed is in the file of the Minister of Justice in Ottawa. Exhibit 3 confirms that the photocopy of the Authority to Proceed was forwarded to the Extradition team leader to initiate the court process. The Crown argues that section 15(4) of the Act allows the extraction hearing to proceed based upon the copy of the Authority to Proceed. That

section provides:

(4) 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 this Part. [ 50 ] I agree with the submissions of the Crown , and conclude that this court has jurisdiction to proceed with this matter based upon receipt of the photocopy of the Authority to Proceed. Issue 2. Is there adequate evidence of fraud over $5000?

Should the Crown’s application to amend the Authority to Proceed be granted? [ 51 ] Evidence was filed on behalf of the eight alleged victims, who each paid the sum of $199 US and did not receive the promised credit card. The corresponding Canadian offence relied upon is fraud over $5000.00. The defence argues that based on the limited number of victims, and in the absence of evidence that these eight victims are only a sample of a larger pool of victims, there is no evidence of fraud over $5000.00.

The defence argues that there is no jurisdiction for this court to substitute the lesser included Canadian offence of fraud under $5000.00 as this is a statutory court without any inherent discretion, and no ability to substitute a lesser offence. [ 52 ] I conclude that there is ample evidence in the record of the case that the fraud in this case was in the millions of dollars, involving thousands of victims. It would have been preferable for the record of the case to make it explicit that the eight victims who have provided statements were a small sample only of a much larger group who were similarly defrauded.

There is evidence in the record of the case that this inference may reasonably be drawn clearly meeting the test in Arcuri . Therefore, I conclude that it is not necessary or appropriate to grant the Applicant’s request to amend the Authority to Proceed by deleting the reference to fraud over $5000.00 in 380(1) (a). [ 53 ] If I am incorrect in my conclusion reached, there is ample precedent for an Authority to Proceed that simply specifies fraud generally either as s. 380 or s. 380(1) of the Criminal Code , without specifying subsection (a) (fraud over $5,000). (See: Canada (Attorney General) v.

Vera , 2010 ONSC 547 , [2010] O.J. No. 249 (Sup. Ct.) (QL), at para. 4 (“ s. 380 ”); United States of America v. Quintin , 2000 CanLII 22657 (ON SC) , [2000] O.J. No. 791, (Sup. Ct.) (QL) at para. 3 (“ s. 380 ”); United States of America v. Reid , [2002] O.J. No. 2377, (Sup. Ct.) (QL) at para. 2 (“ s. 380(1) ”); China v. Wong [2007] O.J. No. 5320 (Sup. Ct.) (QL) at para. 3 ; aff’d [2009] O.J. No. 598, 2009 ONCA 148 (“ s. 380 ”); Canada (Attorney General) v. Kissel , [2006] O.J. No. 5019 (Sup. Ct.) (QL) at para. 5 (“ s. 380(1) ”), aff’d 2008 ONCA 208 (CanLII) , 89 O.R. (3d) 481 (C.A.); U.S.A. v.

Gorcyca , 2007 ONCA 76 , 216 C.C.C. (3d) 403 (C.A.),

at para. 28 (“ s. 380(1) ”); U.S.A. v. Thomlison , 2007 ONCA 42 , 84 O.R. (3d) 161 at para. 1 (“ s. 380 ”); United States of America v. Weber , [2004] O.J. No. 1971 (Sup. Ct.) (QL), at para. 1 (“ s. 380 ”); United States of America v. Ganev , [2003] O.J. No. 2968 (Sup. Ct.) (QL) at para. 2 (“ s. 380 ”); Portugal v. Raposo , [2005] O.J. No. 2596 (Sup. Ct.) (QL), at para. 1 (“ s. 380 ”); United States of America v. Chomica , [2007] O.J. No. 3208 (Sup. Ct) (QL) at para. 1 (“ s. 380(1) ”). [ 54 ] Regarding the defence argument that the Superior Court is a statutory court, it should be noted that the Superior Court is a court of inherent jurisdiction that derives its power from

section 96 of the Constitution Act, 1867 , (U.K.), 30 & 31 Victoria , c. 3 . As stated in MacMillan Bloedel Ltd. v. Simpson , 1995 CanLII 57 (SCC) , [1995] 4 S.C.R. 725 at para. 15 : The superior courts have a core or inherent jurisdiction which is integral to their operations.

The jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the Constitution. [ 55 ] Having said that, the role of a judge in extradition matters is limited and defined by the terms of the Act . [ 56 ] If I was concerned about the argument raised by the defence I would have granted the requested amendment. However based upon my conclusions reached, the amendment is not necessary. Issue 3. Defence challenges to the sufficiency of the evidence [ 57 ] I do not accept the defence arguments that the

summary of the anticipated evidence in the record of the case is deficient having regard to the principles enunciated by Rosenberg, J. in United States of America v. Yang (2001), 2001 CanLII 20937 (ON CA) , 56 O.R. (3d) 52 (C.A.) at para 63 : Equally, this critical function for protection of the liberty of the individual cannot be reduced to a meaningless ritual. While the judicial phase is not a full-fledged trial, neither “is it a mere formality”: Shulman at p. 307. Thus, the Judge must be in a position to exercise that function.

If the material presented in the record of the case is so bereft of detail, such as the witness’ means of knowledge, that the Judge cannot determine its sufficiency, the Judge will have to discharge the person sought for prosecution. This is not a question of the Judge weighing the evidence or passing on its reliability, but of carrying out the function assigned by statute.

For example, if the record of the case contained a statement that the police suspected the fugitive committed the offence, without stating the basis for this opinion, and this was the only evidence proffered by the extradition partner as proof that the fugitive committed the offence then, even if this opinion was admissible in the requesting state as proof of the offence, it would not be sufficient to meet the s. 29 test for committal because it would have no probative value. [ 58 ] The defence argues that the evidence of the eight victims, as well as the evidence of Mr.

Plunkett, consists of bald assertions by each witness without providing details of the witness’ source of the information or belief. The defence argues that the evidentiary proof is therefore inadequate for the purpose of an extradition hearing. [ 59 ] It must be remembered that the extradition judge’s role in assessing the evidence remains extremely limited. [ 60 ] In U.S.A. v. Huynh , [2006] O.J. No. 3730 (Sup.

Ct.) (QL) , Beaulieu J. gave a caution at para. 107 with respect to the role of the court in extradition: The purpose of an extradition hearing, as set out in Ferras , is basically to assess the evidence rigorously enough so as to afford sufficient protection to the individual sought for extradition under s. 7 of the Charter , but in a way that is still appropriate to the extradition context. The weighing of the evidence cannot cross the line into the role of the trier of fact, which is to assess the ultimate credibility of the evidence presented by the prosecution authority.

The extradition hearing cannot turn into an adjudication of the issues. [ 61 ] U.S.A. v. Ferras , 2006 SCC 33 , [2006] 2 S.C.R. 77, makes it clear that the issue is one of threshold reliability, i.e . is the evidence sufficiently reliable that it could be put to a jury in Canada? While Ferras did not address the issue of what type of evidence would be sufficient to rebut that presumption of threshold reliability, the Ontario Court of Appeal has considered the issue in subsequent decisions. [ 62 ] First, in U.S.A. v.

Thomlison , 2007 ONCA 42 , 84 O.R. (3d) 161, the Ontario Court of Appeal considered and rejected the argument that Ferras has changed the test for committal.

After reviewing the salient portion of Ferras, the Court stated: [45] In the end, when Ferras is read as a whole and against the backdrop of the s. 7 Charter issue - namely, the propriety of depriving persons of their liberty and security, by forcibly removing them to another country to stand trial on the basis of evidence that is either unavailable and/or manifestly unreliable - I am satisfied that the newly-acquired authority conferred on extradition judges is limited in the manner suggested by the respondent.

Unlike the situation that existed post Shephard, Ferras now authorizes extradition judges to assess the availability and quality of the evidence that can legitimately be included in the "some evidence" basket for sufficiency purposes. In my view, that enables them to discard evidence that is not realistically available for trial and/or evidence that is manifestly unreliable, i.e. evidence upon which it would clearly be dangerous or unsafe to convict .

It does not allow extradition judges to refuse to commit where there is "available and reliable" evidence in the "some evidence" basket upon which a reasonable jury, properly instructed, could convict. … [47] To summarize, I am satisfied that if there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed, could convict, the test for committal will have been met. In that regard, it matters not whether the case against the person sought is "weak" or whether the prospect for conviction "unlikely".

The ultimate question of guilt or innocence is for the trial court in the foreign jurisdiction. [Emphasis added] [ 63 ] Second, in U.S.A. v. Anderson , 2007 ONCA 84 , 85 O.R. (3d) 380, the Ontario Court of Appeal repeated that only a limited

qualitative evaluation of the evidence proffered by the requesting state is permissible as part of the s. 29(1)(

a) inquiry post- Ferras . As Justice Doherty stated: [28] U.S.A. v. Ferras, supra, contemplates a limited qualitative evaluation of the evidence proffered by the requesting state. As this court recently said in United States of America v. Thomlison [citation omitted], at paras. 45-46, U.S.A. v. Ferras, supra, does not envision weighing competing inferences that may arise from the evidence. It does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable .

Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial. [30] Evidence may be rendered "so defective" or "so unreliable" as to warrant disregarding it due to problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors.

I would stress, however, that it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the s. 29(1)(

a) inquiry . [Emphasis added] [ 64 ] In both Thomlison and Anderson , the Ontario Court of Appeal specifically rejected the argument that Ferras represents a fundamental expansion in the extradition judge’s role. [ 65 ] The defence argues that there is no adequate direct evidentiary link between the operations at the telemarketing location and Mr. Orphanou establishing by reasonable inference that Mr. Orphanou knew that the operations were fraudulent. The defence suggests that the evidence of Mr. Plunkett involves bald, unsubstantiated allegations and is unreliable, and should not be relied upon. [ 66 ] I disagree. The

summary of the evidence in the record of the case must be considered as a whole. In this case, the record of the case does not consist of bald assertions. The record of the case is a

summary of the anticipated evidence. It is not an affidavit, nor is it a witness statement. There is ample information provided in the record of the case to enable me to determine the sufficiency of the evidence. The source of each victim’s information came from an unsolicited telephone call from a telemarketer. Mr. Plunkett’s information came from his involvement with Mr.

Orphanou as an employee of Federal Credit. [ 67 ] I conclude that the anticipated evidence of the witnesses and the documents outlined in the record of the case provide prima facie proof of a fraudulent scheme satisfying the test outlined in Arcuri .

The evidence I rely upon in reaching this conclusion is the following: • Representatives of Federal Credit, First Federal, Key Nation, and Pacific First contacted multiple victims and promised guaranteed Visa or MasterCard credit cards in exchange for a $179-$199 advance fee; • These companies obtained the victims’ banking information under these false pretenses, then debited the fees from the victims; • The companies never provided the promised credit cards; • The companies were not authorized to offer cards by Visa or MasterCard. [ 68 ] I conclude that the anticipated evidence of the witnesses and the documentary evidence considered as a whole overwhelming supports the reasonable inference that Mr.

Orphanou was actively involved in the fraudulent telemarketing scheme, playing a directing and managerial role in its operation. I have considered the following in reaching this conclusion: • Mr. Orphanou personally incorporated each of Federal Credit, First Federal, Key Nation, and Pacific First, listing himself as President; • Mr. Orphanou directed the telemarketers to contact individuals in the US known to have been previously denied credit cards, offer them guaranteed credit cards if they had an existing bank account and agreed to pay the advance fee; • Mr.

Orphanou was the person who obtained the names and telephone numbers of the victims or “leads” and provided them to his staff; • The Debit Processors were used to collect the “fees.” Mr. Orphanou personally opened and maintained accounts, under the corporations, with the Debit Processors; • From 2000 to 2002, The Debit Processors deposited almost $7,000,000 US into bank accounts that Mr. Orphanou designated at Mellon Bank and Bank of America; • Mellon Bank and Bank of America records show that Mr. Orphanou is the signatory to these bank accounts; • Mr.

Orphanou subsequently transferred a large portion of these funds to bank accounts in Canada that were opened and maintained by him under numbered Ontario corporations. • Mr. Orphanou was a Director/President and/or Treasurer of the Ontario corporations; and • Mr. Orphanou directed that mailing addresses be established in the US under the names Key Nation and Pacific First and to have any mail received for these companies forwarded to him at a Toronto address.

Issue 4. Sufficiency of Identification Evidence [ 69 ] The extradition judge must be satisfied on a balance of probabilities that the person before the court is the person sought, as stated in United States of America v. Wong (1995), 1995 CanLII 8935 (BC CA) , 98 C.C.C. (3d) 332 (BCCA) at para. 67 , leave to appeal ref'd [1995] S.C.C.A No. 286. [ 70 ]

Section 37 of the Extradition Act provides that similarity in names and physical characteristics in photographs, fingerprints, or other descriptions of the person sought and those of the person before the court are evidence of identification at an extradition hearing. As well, it is a long-established practice for an extradition hearing judge to compare the photograph of the person sought contained in the evidence with the person before the court to determine that identity has been established.

This is in line with Supreme Court of Canada decisions in domestic criminal cases, which have held that the trier of fact can compare the accused with videotape or other photographic evidence and use it as the sole basis for identification of the accused as the perpetrator of a crime, even in the face of conflicting evidence (see R. v. Nikolovski , 1996 CanLII 158 (SCC) , [1996] 3 S.C.R. 1197). [ 71 ] In considering the question of identity, I am entitled to compare the photograph attached as Exhibit 3 in the Record of the Case identified by Mr. Plunkett as being Mr. Orphanou, with the person appearing in court.

It was clear to me that the person in court is the same person that appears in the photocopy of the photograph. However, it is not noted in the Record of the Case when this photograph was taken and under what circumstances. [ 72 ] The personal identifiers of Alex Orphanou outlined in the Record of Arrest are as follows: Date of birth: 20 August 1962 Place of Birth: Lirassol, Cypress Citizenship: Canada Social Security No: None Height: 5’8” Weight: 180 lbs Driver’s Licence No: 076201190620820 issued in Ontario Last known home address: 411 Woodlands Acres, Maple, Ontario [ 73 ] Mr.

Plunkett, a former employee, has identified Mr. Orphanou as the person depicted in the photograph included as part of the record of the case as Alex Orphanou, the person involved in the telemarketing fraud. [ 74 ] Mr. Plunkett’s evidence is crucial to the issue of the identity of the person sought. The defence argues that Mr. Plunkett is a person of low moral character with an extensive criminal record, and his evidence is without corroboration. They argue that the identification evidence does not meet the burden on a balance of probabilities that Mr.

Orphanou is the person sought. [ 75 ] As Justice Clark stated in his disclosure ruling with respect to Mr.

Plunkett of March 23, 2010, at para. 38 in this matter: As thoroughly disreputable as he [Plunkett] may be, inasmuch as he worked directly with the applicant, it is hard to imagine that Plunkett’s identification evidence of the applicant as the man in charge of the various companies could be seriously challenged. [ 76 ] I agree with this conclusion. [ 77 ] I conclude that the Applicant has proved on a balance of probabilities the identity of Alex Orphanou, the man before the court, is the person sought in this extradition. I reach this conclusion without consideration of the issue below.

The significance of exhibit 3 with regard to identity [ 78 ] As a result of the challenge by the defence to the absence of the original Authority to Proceed, the Crown filed Exhibit 3, the June 2008 Memorandum confirming that the photocopy of the Authority to Proceed was forwarded to the team leader in charge of extraditions in Ontario, along with the original and two copies of the record of the case. [ 79 ] The June 10, 2008 Memorandum written on the letterhead of the Department of Justice to the Ontario Extradition team leader states: Interpol Ottawa has confirmed that this person has a Canadian criminal record in Canada.

The fingerprints submitted by the USA matched those of Orphanou’s under FPS # 188735B. Mr. Orphanou is living with his wife at 70 East Beaver Creek Road, #29,

Richmond Hill, Ontario. He is self employed at Health Med Plus, 164 Eglinton Avenue East, Toronto, tel: 416-579-7247 (w) 416-543- 6425 (h). Mr. Orphanou employs 40 to 50 people for telemarketing. [ 80 ] I asked counsel for written submissions with respect to the relevance, if any of this information. Counsel for the Applicant submits that this is inadmissible hearsay evidence, and defence counsel agrees with this submission. I accept the submissions from counsel, and had reached my conclusions about identity before this issue arose.

I note however, that had this information been included in the record of the case, perhaps this matter could have proceeded much more expeditiously. Conclusions [ 81 ] I conclude that the evidence in the record of the case provides strong evidence that could lead a reasonable jury, properly instructed, to conclude that Mr. Orphanou, either directly or through his membership in a common enterprise, intentionally employed deceit, falsehood, or other fraudulent means knowing that such tactics could deprive persons of money exceeding $5000.00.

There is more than sufficient evidence to support committal in the circumstances of this case. [ 82 ] I am satisfied on a balance of probabilities that Mr. Orphanou, the person before the court, is the person sought for extradition to the United States. [ 83 ] I therefore order the committal of Mr. Orphanou into custody pursuant to

section 29 of the Act , to await surrender for the offence set out in the Authority to Proceed. _____________________________ J. WILSON, J. Released: April 28, 2010 CITATION : Attorney General of Canada on Behalf of The United States of America v. Alex Orphanou a.k.a. Alexos Orphanou, 2010 ONSC 2153 COURT FILE NO.: 27/08 DATE: 20100428 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 29 OF THE EXTRADITION ACT FOR THE COMMITTAL OF ALEX ORPHANOU a.k.a. ALEXOS ORPHANOU TO AWAIT SURRENDER TO THE UNITED STATES OF AMERICA BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant – and – ALEX ORPHANOU a.k.a. ALEXOS ORPHANOU Respondent and Person Sought RULING J. Wilson J.

Released: April 28, 2010