The Attorney General on behalf of the United States of America Requesting State/ Respondent And: Canada (Minister of Justice) Respondent And: Robert Shull, Terry Shull v. Leonard Fiessel, 2003 BCSC 444

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: USA v. Shull, Shull & Fiessel 2003 BCSC 444 Date: 20030325 Docket: No. CC991440 Registry: Vancouver IN THE MATTER OF THE EXTRADITION ACT , R.S.C. 1999, c. 18 Between: The Attorney General on behalf of the United States of America Requesting State/ Respondent And: Canada (Minister of Justice) Respondent And: Robert Shull, Terry Shull and Leonard Fiessel Persons Sought/ Applicants Before: The Honourable Madam Justice Allan Reasons for Judgment Counsel for Robert Shull: Robert S. Anderson Counsel for the Minister of Justice: John D.

Cliffe Counsel for the Attorney General of Canada : William Y.W. Loo Date and Place of Hearing: February 17 and 21, 2003 Vancouver , B.C. The Application: [ 1 ] Robert Shull (who I will refer to as Mr.

Shull), Terry Shull, and Leonard Fiessel (collectively “the Applicants”) are Canadian citizens who are persons sought by the requesting state (the “ USA ”) to stand trial for a number of securities and wire fraud charges. [ 2 ] The Applicants seek the disclosure of relevant documents in the possession of the Canadian authorities, including the Minister of Justice (the “Minister”), the Attorney General of Canada (the “Attorney General”) and the Department of International Assistance Group, relating to what they describe as “extraordinary delay” in proceeding with the extradition process.

Although each Applicant filed a separate notice of application pursuant to ss. 7 , 24(1) and 52 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) for disclosure of documents, only Mr. Anderson, counsel for Mr. Shull, made submissions on behalf of his client. Counsel for other applicants, who did not appear on the application, adopted the submissions of Mr. Anderson. [ 3 ] Mr. Shull seeks the following documents: (

a) copies of all internal documents of the Government of Canada and communications exchanged between the USA and the Attorney General relating to the delay in proceeding with this matter since the original Authority to Proceed (“ATP”) was quashed by Madam Justice Loo on June 29, 2001;

(

b) copies of all internal documents of the Government of Canada relating to the prosecution of the appeal to the British Columbia Court of Appeal from the decision of Loo J. and, in particular, any documented information that would explain why no further step was taken subsequent to filing a notice of appeal; and (

c) copies of all documents either exchanged between the USA and the Attorney General or internal to the Government of Canada relating to the delay between August 7, 1998 (when the Minister received the materials on which the “First Extradition Proceeding” was based) and November 17, 1999 (when the Attorney General applied to the Supreme Court of British Columbia for a summons, following the issuance of the original ATP). [ 4 ] The Applicants bring this preliminary motion for disclosure of documents relating to those communications, hoping to establish a factual foundation for a future application for a judicial stay of proceedings on the basis that unreasonable delay in pursuing their extradition has infringed their s. 7 Charter rights. [ 5 ] The Minister opposes this application for three reasons: • the Court has jurisdiction to grant a remedy for delay only if the delay affects the fairness of the Applicants’ extradition hearing.

In this case, the delay complained of does not affect the fairness of the extradition hearing and the disclosure sought is irrelevant; • the application is premature. The role of the extradition judge is limited to determining whether there is a prima facie case to justify the committal for surrender of the person sought. The alleged delay ought to be raised before the Minister for his or her consideration in deciding whether or not to surrender the Applicants. That decision will arise only if the extradition judge commits the Applicants.

The issue of delay can also be raised at trial in the USA if the Applicants are committed and surrendered; • the Applicants apparently seek disclosure to further a judicial review of the Minister’s exercise of discretion to originally commence and subsequently re-commence the Applicants’ extradition proceedings. There is no “air of reality” to the Applicants’ contention that the Minister exercised his or her discretion improperly and, in any event, the Minister’s discretion is not reviewable by the extradition court.

The alleged “bifurcation” of the Department of Justice: [ 6 ] The Minister and the Attorney General on behalf of the USA were represented separately on this application. Mr. Loo, counsel for the Attorney General, had apparently advised Mr. Anderson that he did not represent the Minister in connection with the latter’s dealings with the USA and he had no knowledge of, or contact with, representatives of the Department of Justice assigned to those matters. Mr. Anderson queries the ability of the Department of Justice to erect a “Chinese Wall” in this fashion.

He also questions the participation of the Minister on this application because that individual fulfills an administrative and quasi-judicial role in determining first, whether to issue an ATP and, subsequently, after a committal, whether to surrender the person sought. Mr. Anderson submits that, by strenuously opposing this application, the Minister has undertaken an adversarial role and his participation taints the entire extradition proceeding. [ 7 ] Mr.

Cliffe, counsel for the Minister, submits that no conflict arises as a result of the Minister’s opposition to this application because the documents sought are in the possession of the Minister, rather than the Attorney General. [ 8 ] Counsel did not suggest that the issue of any impropriety arising from the alleged bifurcation of the Department of Justice can or should be determined on this application. Background: [ 9 ] Mr. Shull is a Canadian citizen, resident in British Columbia . The extradition proceedings relate to allegations that the Applicants committed fraudulent acts in the USA between 1992 and 1994.

In 1994, Mr. Shull testified twice pursuant to a subpoena issued by the US Securities and Exchange Commission (the “SEC”). In 1996 the SEC obtained judgment against the Applicants. In September 1997, two RCMP officers advised Mr.

Shull that the FBI might contact him for a further interview, that charges would be laid in the USA , and that his extradition would be sought. [ 10 ] The first ATP simply listed the Canadian offences that correspond to the alleged conduct for which the USA sought extradition: • conspiracy to commit fraud affecting the public market contrary to ss. 380(2) and 465(1) of the Criminal Code ; • fraud affecting the public market contrary to s. 380(2) of the Criminal Code ; • conspiracy to manipulate stock exchange transactions contrary to ss.382 and 465(1) of the Criminal Code ; and • fraudulent manipulation of stock exchange transactions contrary to s.382 of the Criminal Code . [ 11 ] On June 29, 2001, Loo J., the extradition judge, acceded to the Applicants’ motion to quash the ATP on the basis that it was lacking in factual particularity and it failed to specify the relationship between the conduct in the ATP and the 45 offences in the US indictment (Vancouver Registry No.

CC991440). [ 12 ] An appeal by the USA was taken but abandoned in October 2001, and a second ATP that set out particulars of the alleged conduct in the US was filed on June 4, 2002 .

[ 13 ] A chronology of some of the events relevant to the extradition proceedings follows: April 8, 1998 A grand jury in the US District Court of the District of Massachusetts indicted the Applicants for offences of securities fraud and wire fraud. August 7, 1998 The Government of Canada received documents from the USA with respect to the Applicants’ extradition. June 17, 1999 The Extradition Act , S.C. 1999, c. 18 (which includes the requirement for an originating ATP) came into force. November 5, 1999 Ms.

Kothe, Counsel, International Assistance Group for the Minister issued an ATP pursuant to s. 15 of the Extradition Act authorizing the Attorney General to proceed before the Supreme Court of British Columbia to seek orders committing the Applicants into custody to await surrender. November 17, 1999 October 12, 2000 Summonses were issued for the Applicants returnable December 1, 1999. Counsel for Mr. Shull filed a notice of application for a Constitutional Remedy seeking a stay of proceedings on the basis of unreasonable delay. That application was never argued.

October 13, 2000 Feb. 19-20, 2001 June 25, 2001 An extradition hearing was scheduled but did not proceed. The Applicants sought an adjournment on the basis they were negotiating a plea agreement. The USA opposed the adjournment but it was granted. The extradition hearing was adjourned because Mr. Klein, counsel for Terry Shull, was ill. An extradition hearing commenced before Loo J. The Applicants made a preliminary motion to quash the ATP on the basis that it contained insufficient particularity. June 29, 2001 July 13, 2001 Loo J. granted the Applicants’ motion and quashed the ATP.

The USA filed a notice of appeal from Loo J.’s order. October 11, 2001 The USA abandoned its appeal from the decision of Loo J. June 4, 2002 Ms. Kothe, on behalf of the Minister, issued a new ATP that included additional particulars. July 10, 2002 Mr. Justice Parrett issued summonses for the Applicants. October 31, 2002 A date was first set for the hearing of this disclosure application but adjourned at the request of the Attorney General. The scheme of the Extradition Act : [ 14 ] The domestic law of Canada governing extradition, which is statutory in nature, is embodied in the Extradition Act .

The Act provides the framework for extraditing a person sought by a requesting state from Canada : • the requesting state, an extradition partner, submits a request to the Minister to extradite the person sought, with supporting material; • the Minister determines whether the material from the requesting state complies with the terms and conditions imposed by the Extradition Act and the relevant treaty.

If it does, he or she issues an ATP authorizing the Attorney General to proceed before an extradition judge to seek a judicial order of committal on one or more of the offences set out in the ATP; • an extradition hearing is held at which the extradition judge determines whether: o there is prima facie evidence of conduct by the person sought that, had it occurred in Canada, would justify his or her committal to stand trial in Canada, and o the person is the person sought by the extradition partner.

If satisfied on both issues, the extradition judge may commit the person sought on one or more of the offences set out in the ATP to await surrender or not by the Minister; and • the Minister then decides whether or not to surrender the person sought to the requesting state on one or more of the offences set out in the ATP for which the person was committed.

[ 15 ] After committal, the person sought may make submissions to the Minister in respect of any ground relevant to his or her decision to surrender: s. 43 (1). Those grounds include evidence of inordinate delay and its effect upon the person sought. Section 44(1) empowers the Minister to exercise his or her discretion to decline the surrender of the person sought where surrender would be “unjust or oppressive having regard to all relevant circumstances”. [ 16 ] In Ju ne 1992, amendments to the previous Extradition Act , S.C.,

Chapter E-23 , eliminated the appeal process from the extradition judge by way of habeas corpus. They also provided a right to (1) appeal a committal order and (2) seek judicial review of the Minister’s surrender order to the provincial appellate court. A further appeal from either or both decisions may be taken to the Supreme Court of Canada. The new Extradition Act, S.C. 1999, C. 18 , proclaimed in June 1999, incorporated the 1992 amendments.

The jurisdiction of the extradition judge: [ 17 ] The previous Extradition Act permitted a review of a committal order by way of a writ of habeas corpus to a judge of the Supreme Court. The extradition judge had no Charter jurisdiction and little inherent jurisdiction: Argentina v. Mellino , 1987 CanLII 49 (SCC) , [1987] 1 S.C.R. 536 . [ 18 ] The jurisdiction of the extradition judge was enhanced by the 1992 amendments.

That enlarged jurisdiction is found in s. 25 of the current Extradition Act : For the purposes of the Constitution Act , 1982 , a judge has, with respect to the functions that the judge is required to perform in applying this Act , the same competence that that judge possesses by virtue of being a superior court judge. (emphasis added) [ 19 ] As a result, an extradition court is now a court of competent jurisdiction pursuant to s. 24 of the Charter and has the jurisdiction to grant Charter remedies, including stays of proceeding and orders excluding evidence.

Extradition judges are also courts of inherent jurisdiction: United States of America v. Dynar, 1997 CanLII 359 (SCC) , [1997] 2 S.C.R. 462 ; United States of America v. Kwok , [2001] 1 S.C.R. 532 , 2001 SCC 18 ; United States of America v. Cobb , [2001] 1 S.C.R. 587 , 2001 SCC 19 . [ 20 ] However, the Charter jurisdiction of the extradition judge extends only to remedy Charter breaches pertaining directly to the circumscribed issues that are relevant at the committal stage of the extradition process.

Section 25 of the Extradition Act clearly restricts the extradition judge’s jurisdiction to grant Charter remedies that are related to the function that he or she “is required to perform in applying this Act ”. [ 21 ] In Cobb , supra , Arbour J. described the Charter jurisdiction of the extradition judge at ¶ 24: This Court has confirmed, in Canada v. Schmidt , 1987 CanLII 48 (SCC) , [1987] 1 S.C.R. 500 , at pp. 520-21 , and again, more recently, in United States v.

Burns , [2001] 1 S.C.R. 283 , 2001 SCC 7 , that the Charter applies to extradition proceedings in the sense that the treaty, the extradition hearing in Canada and the exercise of the executive discretion to surrender the fugitive all have to conform to the requirements of the Charter . The committal judge presides over a judicial hearing and he or she must ensure that the hearing itself is conducted in accordance with the principles of fundamental justice ( s.7 ). [ 22 ] Arbour J. noted that prior to the 1992 amendments, the Charter issues arising at the committal stage were decided by the habeas corpus judge.

The 1992 amendments expanded the powers of the extradition judge to include the functions previously exercised on habeas corpus review. That expansion included the power to grant appropriate remedies for pertinent Charter breaches, “but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the committal stage of the extradition process”: ¶26. [ 23 ] The extradition judge’s function under the Act is to determine whether there is prima facie evidence that the act charged would constitute a crime in Canada (and to confirm the identity of the person sought): U.S.A. v.

McVey 1992 CanLII 48 (SCC) , [1992], 3 S.C.R. 475 . Arbour J. in Kwok , supra, at ¶44, confirmed that the extradition judge may only grant Charter remedies relevant to that determination and must not usurp the Minister’s function: The function of the committal judge … remains the determination of whether a prima facie case has been made out.

As the habeas corpus judge formerly could, the extradition judge can now grant appropriate Charter remedies on matters relevant to the committal stage, provided that he or she does not usurp the Minister’s function. [ 24 ] Arbour J. reviewed the conflicting case law that has considered the effect of the 1992 amendments on the jurisdiction of the extradition judge. At ¶54, she stated: In my view, the 1992 amendments did not confer unlimited Charter jurisdiction on the extradition judge and therefore do not render obsolete all previous extradition case law.

Section 9(3) [now s. 25 ] clearly confers Charter jurisdiction upon the extradition judge insofar as the issues are specific to the functions of the extradition hearing, and to the extent that the Charter remedies could have previously been granted by the habeas corpus judge. This is consistent with this Court’s decision in Dynar , supra , which confirmed that the limited

role of the extradition judge had not been substantially modified by the 1992 amendments. The added jurisdiction conferred upon the extradition judge must be understood in light of this governing principle. Through s. 9(3), the extradition judge acquired the jurisdiction formerly reserved to the habeas corpus judge, and nothing else. (emphasis added) [ 25 ] At ¶57, Arbour J. concluded: While s. 9(3) [now s. 25 ] eliminates the habeas corpus stage, both the extradition judge and the Minister maintain their separate functions and jurisdictions within the process.

Section 9(3) of the Extradition Act does not confer an expanded Charter jurisdiction upon the extradition judge. It simply permits the extradition judge to exercise the jurisdiction previously reserved for the habeas corpus judge, which includes remedies for the Charter breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process, and otherwise leaves the powers and functions of the committal court substantially unchanged. Sections 11(

b) and 7 of the Charter : [ 26 ] It is common ground that s. 11(

b) of the Charter , which guarantees any person charged with an offence the right to be tried within a reasonable time, does not apply to extradition proceedings. The person sought at an extradition hearing is not charged with an offence, an extradition hearing is not a trial, and the Charter cannot be given extraterritorial effect to govern the method in which criminal proceedings in a foreign country are to be conducted: Schmidt v.

The Queen (1987), 1987 CanLII 48 (SCC) , 33 C.C.C. (3d) 193 (S.C.C) . [ 27 ] In Schmidt , La Forest J., speaking for the majority of the Court, cautioned against the misapplication of Charter remedies to the extradition process at ¶ 37 and 39: Fundamentally, what the appellant seeks to do is to restructure the extradition hearing (which is simply one to determine a condition precedent to the executive's power to surrender, i.e., whether there is a prima facie case that an alleged extradition crime was committed) into a quite different proceeding to determine whether the foreign trial meets the standards of a trial conducted in this country.

I agree with the extradition judge … that he had no jurisdiction to do this. … Briefly stated, I think s. 11 relates to charges laid by the governments referred to in s. 32 of the Charter . An extradition hearing does not fall within that description. [ 28 ]

Section 7 of the Charter states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 29 ]

Section 7 of the Charter applies to an extradition hearing to ensure that the person sought receives a fair extradition hearing, one that conforms with the principles of fundamental justice. It permeates the entire extradition process and is engaged both at the committal and surrender stages: United States of America v.

Shulman , 2001 SCC 21 (CanLII) , [2001] 1 S.C.R. 616 , 2001 S.C.C. 21 at ¶23. [ 30 ] In Cobb , supra , the Supreme Court of Canada confirmed that the extradition judge has jurisdiction pursuant to the Charter and at common law to stay extradition proceedings as an abuse of process where the abuse related to the committal hearing. The facts in that case were extreme. The trial judge in the US had threatened to impose the absolute maximum jail sentence permitted by law if the fugitives did not cooperate and go to the US voluntarily.

The prosecutor assigned to the case appeared on a Canadian television program and threatened that those fugitives who contested their extradition would serve longer sentences under much more stringent conditions, and would “be the boyfriend of a very bad man”. The extradition judge stayed the proceedings on the basis that the conduct of the US officials abused the process of the extradition court. The Ontario Court of Appeal set aside the stay but the Supreme Court of Canada restored it. The requesting state had argued that the conduct of the American officials could only relate to the trial in the USA .

Because such conduct was not relevant to any issue before the extradition judge, it could not be the subject of any Charter remedy. [ 31 ] Arbour J., for the Court, rejected this argument. At ¶33-35, she stated:

The respondent argues that any concern that the appellants may face unfair proceedings in the United States is a matter for the Minister, not for the extradition judge, whose sole function is to assess the sufficiency of the evidence. True as this may be, it misses the real issue here. The issue at this stage is not whether the appellants will have a fair trial if extradited, but whether they are having a fair extradition hearing in light of the threats and inducements imposed upon them, by those involved in requesting their extradition, to force them to abandon their right to such a hearing.

The focus of the fairness issue is thus the hearing in Canada , to which the Charter applies, and not the eventual trial in the U.S. , which it may be premature to consider pending the Minister’s decision on surrender. Conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge.

Section 7 permeates the entire extradition process and is engaged, although for different purposes, at both stages of the proceedings. After committal, if a committal order is issued, the Minister must examine the desirability of surrendering the fugitive in light of many considerations, such as Canada ’s international obligations under the applicable treaty and principles of comity, but also including the need to respect the fugitive’s constitutional rights. At the committal stage, the presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process.

The Requesting State is a party to judicial proceedings before a Canadian court and is subject to the application of rules and remedies that serve to control the conduct of parties who turn to the courts for assistance. Even aside from any claim of Charter protection, litigants are protected from unfair, abusive proceedings through the doctrine of abuse of process, which bars litigants – and not only the State – from pursuing frivolous or vexatious proceedings, or otherwise abusing the process of the courts.

The scope of the right to disclosure: [ 32 ] It is clear that because an extradition hearing is not a trial, certain criminal trial procedures such as the Crown’s disclosure obligations under R. v. Stinchcombe , 1991 CanLII 45 (SCC) , [1991] 3 S.C.R. 326 do not automatically apply. [ 33 ] Generally, the person sought is only entitled to disclosure of materials upon which a requesting state relies to establish its prima facie case.

In Dynar , supra, at ¶ 128-134 , Cory and Iacobucci JJ. stated: Even though the extradition hearing must be conducted in accordance with the principles of fundamental justice, this does not automatically entitle the fugitive to the highest possible level of disclosure.

The principles of fundamental justice guaranteed under s. 7 of the Charter vary according to the context of the proceedings in which they are raised. … … It follows that it is neither necessary nor appropriate to simply transplant into the extradition process all the disclosure requirements referred to in Stinchcombe , supra , Chaplin , supra , and O'Connor , supra . Those concepts apply to domestic criminal proceedings, where onerous duties are properly imposed on the Crown to disclose to the defence all relevant material in its possession or control.

This is a function of an accused's right to full answer and defence in a Canadian trial. However, the extradition proceeding is governed by treaty and by statute. The role of the extradition judge is limited and the level of procedural safeguards required, including disclosure, must be considered within this framework. Procedures at the extradition hearing are of necessity less complex and extensive than those in domestic preliminary inquiries or trials.

Earlier decisions have wisely avoided imposing procedural requirements on the committal hearing that would render it very difficult for Canada to honour its international obligations. Thus, in Mellino , supra , at p. 548, reservations were expressed about procedures that would permit an extradition hearing to become the forum for lengthy examinations of the reasons for delay in either seeking or undertaking extradition proceedings.

La Forest J., for the majority, held that this would be “wholly out of keeping with extradition proceedings”. … It was emphasized in Mellino , supra , at p. 555, that one of the practical difficulties with attributing jurisdiction to an extradition judge to adjudicate on matters such as unreasonable delay caused by officials either in Canada or the Requesting State is the “limited information available to an extradition judge and his jurisdictional inability to obtain it”.

Any requirement for disclosure that is read into the Act as a matter of fundamental justice under s. 7 of the Charter will therefore necessarily be constrained by the limited function of the extradition judge under the Act , and by the need to avoid imposing Canadian notions of procedural fairness on foreign authorities. The Requesting State concedes that the fugitive is entitled to know the case against him. See United States of America v. Whitley (1994), 1994 CanLII 498 (ON CA) , 94 C.C.C. (3d) 99 (Ont. C.A. ) , aff’d 1996 CanLII 225 (SCC) , [1996] 1 S.C.R. 467 . In light of the

purpose of the hearing, however, this would simply entitle him to disclosure of materials on which the Requesting State is relying to establish its prima facie case. (Emphasis added) [ 34 ] Those statements underscore the policy basis for preventing the extradition hearing from becoming enmeshed in issues that are unrelated to the purpose of the hearing, which is whether there is a prima facie case for extradition. [ 35 ] In this case, Mr.

Cliffe asserts, and it is not disputed, that the Applicants have received disclosure of materials upon which the USA intends to rely to establish a prima facie case. [ 36 ] The person sought may also be entitled to disclosure of materials in relation to justiciable Charter issues that properly arise at the extradition hearing if he or she can demonstrate “an air of reality” to the alleged Charter infringement. [ 37 ] In Kwok , supra, the fugitive sought disclosure of the Canadian investigation into his alleged activities and all discussions between Canadian and American investigative and prosecuting authorities.

Kwok sought this disclosure in connection with his argument that surrender to the USA would breach his mobility rights as a Canadian citizen guaranteed under s. 6 of the Charter . The extradition judge dismissed the application for disclosure and committed Kwok for surrender. The Minister also refused to make disclosure and ordered his surrender.

Kwok’s appeal from committal and his application for judicial review of the Minister’s decision to surrender him were dismissed by the Court of Appeal and the Supreme Court of Canada. [ 38 ] Arbour J. for the Court held that because mobility rights were not engaged at committal stage, the extradition judge had no jurisdiction to grant Charter remedies with respect to alleged violations of s. 6 .

The extradition judge can only order disclosure of materials relevant to the issues properly raised at the committal stage, subject to his or her discretion to expand the scope of the committal hearing to establish the factual basis for a subsequent Charter challenge. [ 39 ] Mr. Anderson cites Kwok , supra and United States of America v.

Licht , (2002), 163 C.C.C. (3d) 372 , 2002 BCSC 299 , for the proposition that an extradition judge has the jurisdiction to order disclosure of material that may be relevant to (1) issues raised at the committal stage, (2) establishing a factual basis for a Charter application or (3) establishing a factual basis for a subsequent application before the Minister.

The test as to whether or not disclosure should be ordered is whether or not there is an “air of reality” to the basis for which disclosure is sought. [ 40 ] In Dynar , the USA sought extradition of Dynar on charges of conspiracy and attempting to launder money. Dynar sought disclosure of information regarding the involvement of the Canadian authorities in the investigation to establish a breach of his s. 7 Charter rights.

Cory and Iaccobbuci JJ., for the majority, stated, at ¶136: “Quite simply, no justiciable Charter issue arises in light of the evidence adduced and the nature of an extradition hearing.” Dynar had received adequate disclosure of the materials upon which the requesting state relied to establish a prima facie case against him. [ 41 ] In Licht , supra, the applicant sought disclosure of information from the RCMP relating to its involvement in an investigation of him by the U.S. Drug Enforcement Administration utilizing the “reverse sting” technique.

Dillon J. carefully reviewed Dynar, Kwok, Cobb and Shulman , supra, with respect to the extradition judge’s jurisdiction to order disclosure. The facts in Licht were very different from those in Kwok and Dynar or the present case. [ 42 ] In Licht , there was credible evidence that foreign agents had acted on Canadian soil with the assistance of the RCMP in a reverse sting operation.

Such conduct would be illegal and the evidence of that conduct, upon which the USA sought to rely, could be inadmissible at the extradition hearing. [ 43 ] Accordingly, she concluded that there was an air of reality to the suggestion that an abuse of process argument pursuant to s. 7 of the Charter and ordered disclosure of the requested materials that were in the possession of the R.C.M.P. [ 44 ] At a subsequent hearing, in United States of America v.

Licht , (2002), 168 C.C.C. (3d) 287 , 2002 BCSC 1151 , Dillon J., stayed the extradition proceedings on the basis that the US agents had unlawfully entered Canada to carry on the reverse sting operation without the consent or knowledge of the RCMP. She held that their conduct was so egregious as to constitute an abuse of process that disentitled the requesting state from the assistance of the court. The disclosure ordered in the previous hearing had been essential to allow Licht to make full answer and defence at the committal hearing. [ 45 ] In USA v.

Cheema (1999), 1999 CanLII 6966 (BC SC) , 65 C.R.R. (2d) 234 (B.C.S.C.) , the fugitives sought disclosure in order to establish a foundation for the argument that their rights under s. 6(1) and 7 of the Charter had been violated. There were serious allegations of misconduct by the Canadian authorities for commencing an illegal reverse sting operation.

At the time that Bennett J. reviewed the law relating to the extent of the expanded Charter jurisdiction of the extradition judge, the Supreme Court of Canada had not delivered its reasons in Cobb and Kwok. [ 46 ] Bennett J. concluded that the Charter jurisdiction for s. 6(1) and s. 7 would arise only if the Minister made a surrender order. The disclosure sought did not relate to the extradition process. Is there an air of reality to Mr. Shull’s submission that there has been unreasonable delay in the commencement and re- commencement of extradition proceedings? [ 47 ] I agree with Mr.

Cliffe that a person sought for extradition is only entitled to disclosure of:

(

a) The materials upon which the requesting state relies to establish a prima facie case; and (

b) Materials relevant to a Charter issue that is justiciable and to which there is an “air of reality”. [ 48 ] Although the application before me is for disclosure only, in order to decide this issue, it is necessary to determine whether any subsequent application for Charter relief on the basis of inordinate delay has any air of reality. [ 49 ] Mr. Anderson submits that it is settled law that unreasonable delay is to be measured in view of all of the relevant circumstances, including the length of delay, any waiver, the prejudice to the individual and the actions of the parties relating to the delay: R. v.

Askov , 1990 CanLII 45 (SCC) , [1990] 2 S.C.R. 1199 ; R. v. Morin , 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771 . He describes the following factors as relevant to this case: Delay by the US authorities: • the joint investigation carried out by the US District Attorney’s office and the SEC commenced in October 1993, Mr.

Shull testified twice in 1994 and the investigation was likely completed prior to April 1996 when default judgment was obtained against the Fiessels in the SEC action in the USA . • the US Attorney’s office did not obtain the US Indictment until April 8, 1998, two years after the SEC obtained default judgment; • the SEC sought to enforce their 1996 default judgments in Canada in January 1999 after they were aware the US Indictment had been returned and an application for extradition made; and • the R.C.M.P. were made aware by September 1997 that charges were going to be laid and extradition sought.

Delay by Canadian authorities: • the materials on which the “First Extradition Proceeding” was based were authenticated in August 1998 and it is likely the formal request by the USA to the Minister occurred shortly thereafter;. • the Canadian authorities delayed commencing the extradition proceeding for approximately one year and three months (from August 1998 to November 1999); • the “First Extradition Proceeding” continued for 19 months (from November 1999 to June 29, 2001 when Loo J. quashed the first ATP); and • the Canadian authorities delayed commencing a second ATP for approximately a year (from June 2001 to July 2002). [ 50 ] Mr.

Anderson questions whether the USA ever had any intention to perfect and prosecute the appeal from the judgment of Loo J. on the basis of (1) comments made by counsel for the USA in court on June 29, 2001, (2) the fact that the USA took no steps relating to its appeal and (3) the total lack of an explanation for the failure to take any steps in connection with the appeal. [ 51 ] Mr. Anderson further submits that Mr.

Shull has been prejudiced by these delays and, accordingly, that there is very much an “air of reality” that the extraordinary delays and resulting prejudice may, on a further application, justify a stay of proceedings. He says the issue of delay is relevant both to the extradition hearing and the subsequent decision by the Minister regarding surrender and that disclosure may be ordered for either purpose. [ 52 ] Mr. Anderson concedes that there is no duty on the Minister or the Attorney General to disclose the merits of the case. That issue relates to the fairness of the trial.

However, he submits that the egregious delay in this case, coupled with the intervention of the Minister into the fray, goes to the fairness of the extradition hearing in the same way that the abuse of process did in Cobb , supra, and that this Court has available to it, the full panoply of procedural safeguards guaranteed by the Charter . [ 53 ] Mr. Anderson described the physical and emotional distress that Mr. Shull and his family have suffered since September 1997 when the RCMP told Mr. Shull that he would be extradited. Mr.

Anderson describes the delay both in the US and Canada as extraordinary and inordinate. In the US , Mr. Shull was indicted four years and four months after he was interviewed. In Canada , the first ATP was issued fifteen months after the materials were received. After the first ATP was quashed, it was almost a full year before a second one was issued. [ 54 ] Mr. Cliffe submits that in the absence of the disclosure sought, Mr. Shull has the benefit of unexplained delay. In any event, the Minister’s position is that there is no air of reality to the Applicants’ proposed delay argument.

He suggests that the relevant period for consideration is not the nine years from the date that the offences were allegedly committed but the actual extradition period that commenced when the first ATP issued in November 1999. [ 55 ] There are a number of cases in which the person sought has sought a stay of proceedings on the basis of unreasonable delay. In U .S.A. v. Reumayr (21 September, 2001), Vancouver CC991033 (B.C.S.C.), appeal pending CA029202 (B.C.C.A.) , the requesting state advised Reumayr shortly before the extradition hearing that it would not be calling an informant as a witness.

Because Reumayr was denied the ability to cross-examine the informant, he was unable to proceed with the extradition hearing as scheduled and the hearing was adjourned. When the hearing resumed, Reumayr applied for a stay of proceedings on the basis that Canadian authorities had unreasonably delayed the extradition hearing. Williamson J. found that Canadian authorities were responsible for the delay, but dismissed the application because the delay had not affected the fairness of the hearing. He concluded that Reumayr had suffered prejudice because of the period of time that he has been incarcerated.

However, his difficulties related, not upon the fairness of the extradition hearing, but to the prejudice resulting from his loss of liberty and security.

[ 56 ] Williamson J. also declined to order disclosure of correspondence between the Provincial Crown counsel, the Department of Justice, and law enforcement authorities in the USA pertaining to the Provincial Crown’s decision to stay parallel proceedings under the Criminal Code . He noted that a Court will only go behind the exercise of prosecutorial discretion in the most extraordinary circumstances. [ 57 ] In U.S.A. v. Danielson (18 March, 2002), Vancouver CC010997 (B.C.S.C.), Danielson was charged and arrested in Wisconsin with sexual assault.

After his release on bail, he fled to British Columbia before the scheduled trial date. At his extradition hearing, he argued that the proceedings should be stayed because US authorities had known he was in B.C. for more than two years before requesting extradition. In the meantime, he had put down roots in Canada and hence it would be unfair to extradite him to the US . Maczko J. conceded that t he issue of delay as an infringement of s. 7 arose in extradition proceedings, but in a limited way.

He concluded that Danielson’s right to a fair hearing was not infringed and stated at ¶ 16-17: … Unreasonable delay by foreign authorities in bringing extradition proceedings only engages the accused’s s. 7 Charter rights if such delay compromises the fairness of the extradition proceeding, ( Mellino , supra ; United States of America v. Allard and Charette (1987), 1987 CanLII 50 (SCC) , 33 C.C.C. (3d) 501 ).

The accused’s protection from an abuse of process with respect to the substantive proceeding in the foreign jurisdiction comes from the Minister of Justice and potentially through applications that may be made at trial. The accused has not established that any of the alleged delay compromises his right to a fair extradition hearing. He is therefore not entitled to a Charter remedy. [ 58 ] In U.S.A. v. Bobiak ( 26 September, 2002 ), Vancouver CC011622 (B.C.S.C.), Bobiak had been convicted in absentia of conspiracy to possess marihuana with intent to distribute it.

Vickers J. dismissed an application for a stay of proceedings by the person sought due to delay caused by Canadian and foreign authorities because there was no evidence that the delay had rendered the extradition hearing unfair. Vickers J. stated at ¶ 6-7: There can be no doubt that the lengthy delay in this case, 1993 to date, is unusual and inordinate. No reasonable explanation is offered for this delay. In part, it appears that fault for the delay lies with the requesting state, although that, too, is not entirely clear. Two years of delay are explained by police actions here in Canada .

No fault for delay lies with Bobiak who, since his return to Canada in the fall of 1983, has made no effort to conceal himself. However, the authorities are clear that a remedy for delay is available only where the delay affects the fairness of the extradition hearing. It is not a function of this court on an extradition hearing to weigh the effect of delay on the trial or sentencing process that is to take place in the foreign jurisdiction. The court cannot consider defences or arguments that might be advanced at that stage.

It is only where the fairness of the extradition hearing is compromised that a stay will be appropriate. [ 59 ] In refusing to stay the committal proceedings, Vickers J. expressed the view that the Minister would take into account the inordinate delay that had occurred. [ 60 ] In U.S.A. v. Rizk , [2002] O.J. No. 719 (S.C.J.) , Ferguson J. declined to stay the extradition proceedings on grounds of delay. He stated at ¶13–17: Counsel directed me to no authority for the proposition that delay at any stage in the other state or in Canada was available as a ground for a stay on this ground.

I do not think delay is a factor that I can consider. I note that in Cobb the court said the court should only consider Charter remedies where an alleged breach “pertains directly to the circumscribed issues relevant at the committal stage of the extradition process”: ¶ 26. I do not think delay is within that perimeter. Further, I note the discussion in Yang where the court cited the authorities for the proposition that Canadian courts should not impose Canadian standards upon our extradition partners: ¶ 42. I believe making delay a consideration would be doing that.

Further, it appears to me that this is a matter which is within the exclusive jurisdiction of the Minister under s. 44(1)(a).

[ 61 ] It is clear then that delay will not give rise to a Charter remedy unless it has rendered the extradition hearing unfair. Can the Applicants attack the propriety of the Minister’s decision to issue the ATPs? [ 62 ] In my opinion, it is not open to the Applicants to attack the timing of the Minister’s decision to issue the ATPs in this Court. Any impropriety with respect to delay in issuing the first or second ATP raises a justiciable issue before the Minister not the extradition judge. In Ho v. Australia (2000), 2000 BCSC 153 (CanLII) , 12 Imm.

L.R. (3d) 224 (B.C.S.C.) , appeal filed Vancouver CA025054 (B.C.C.A.), Ho sought disclosure of all materials in the possession of Canadian authorities (including correspondence between Canadian authorities and Australia) in relation to delay between the issuance of a warrant for Ho’s arrest in Australia and Australia’s request for Ho’s extradition from Canada. Ho alleged that the materials would demonstrate that Canadian authorities improperly instructed Australia to delay its extradition request.

Romilly J. declined to order disclosure since delay raises a justiciable issue before the Minister but not the extradition judge. At ¶ 19 and 22, Romilly J. stated: … No part of the judge’s task under the Act is concerned with the issues of delay in the requesting state or whether, as a result of delay, the Applicant will receive a fair trial in the requesting state. Those issues fall to the Minister under the Act .

As such, the committal hearing is neither intended nor designed to provide an extensive discovery function. … … I am of the view that the context and limited purpose of the Applicant’s extradition hearing precludes me from ordering the disclosure of evidence relating to the delay that occurred between the date of the Applicant’s arrest, and the date the Australian authorities requested his extradition almost two years later. In other words, this court does not have the jurisdiction to make such an order given the limited nature of the extradition hearing. [ 63 ] In Germany ( Federal Republic) v.

Ebke , 2001 NWTSC 2 , Ebke applied for disclosure of a diplomatic note requesting his extradition to Germany . Vertes J. dismissed the application because, inter alia , the Minister has the exclusive authority to review the extradition request and issue an ATP, and the Minister’s decision in this regard is not reviewable by the extradition judge. At ¶14, Vertes J. stated: [I]t is the Minister of Justice who has the responsibility of dealing with extradition requests at the first instance.

The Act provides that the Minister is responsible for dealing with requests for extradition ( s. 7 ) and a request for extradition must be made to the Minister (s. 11). The extradition treaty between Canada and Germany , executed in 1979, provides that a request for extradition shall be communicated through the diplomatic channel (Article XIII). It is thus a government to government communication for the Minister to assess, in terms of its efficacy, and for the Minister to act on by issuing the requisite authorization to proceed.

Nowhere in the Act or the treaty is there any role assigned to the court to review these ministerial responsibilities. Therefore this document is not relevant to any function the court must perform. Does the extradition judge have a discretion to create a record of the delay for the purpose of review by the Minister if the person sought is committed? [ 64 ] In Kwok , supra, Arbour J. considered the circumstances in which an extradition judge may exercise his or her discretion to receive evidence for the purpose of creating a record.

At ¶ 74-79, she stated: If s. 6 issues are premature at the committal stage, it would follow that evidence dealing with an alleged s. 6 breach would be irrelevant and therefore inadmissible at the committal hearing. However, on efficiency grounds, it has been recognized that extradition judges could have the discretion to hear, without deciding, evidence on alleged s. 6 Charter violations when the allegations hold an air of reality: Whitley and Pacificador , supra .

This may indeed be an appropriate course of action, for instance when the issues relevant to the committal are intertwined with the factual basis upon which the Charter challenge will subsequently be based, or when the same witnesses may conveniently be heard on both issues, but I stress that this is entirely within the discretion of the extradition judge.

As the Minister may decline to surrender the fugitive committed for extradition, efficiency may equally dictate waiting for the Minister's decision before arguing Charter remedies, particularly if it calls for an evidentiary foundation unrelated to that presented in relation to the committal. This concern was well expressed by Blair J. in United States of America v. Houslander (1993), 1993 CanLII 8617 (ON SC) , 13 O.R. (3d) 44 (Gen. Div.) at p. 51 : "Building a case for another purpose" is not consistent with the nature of the extradition hearing, which is designed to provide a

summary and expeditious determination as to whether there is sufficient evidence to commit the fugitive for surrender.

Although I would not oust altogether the discretion of the extradition judge to receive evidence related solely to s. 6 Charter issues, he or she should keep in mind the need for an expeditious disposition of the committal issues, the danger of confusion that may arise if irrelevant evidence is received, and the waste that will result if the Minister ultimately declines to surrender. While a committal hearing may be a suitable forum in which to compile a factual record to deal with some Charter issues, the factual record may be developed or supplemented at subsequent levels, when the issues actually arise.

As the Court of Appeal for Ontario stressed in Whitley , supra , there is nothing to prevent the Minister from conducting a hearing or permitting evidence to be submitted in writing for the purpose of deciding whether to surrender the fugitive. The court of appeal may also be the appropriate forum in which evidence relevant to an alleged Charter violation can be adduced.

Of course, courts of appeal are rarely the original jurisdiction in which Charter remedies can be obtained and are also rarely required, in the discharge of their judicial functions, to hear evidence and decide factual issues as a forum of first instance. However, realistically, under the current extradition structure, it may often be the only appropriate judicial forum, particularly if the extradition judge and the Minister both declined to exercise their discretion to receive such evidence.

The intent of the amendments to the Extradition Act was to streamline the extradition process and, while maintaining the two-tiered system described above, to consolidate the multiplicity of judicial proceedings that could otherwise be launched to review that process. Indeed, since 1992, the Extradition Act permits the consolidation of the appeal from the committal decision of the extradition judge and the judicial review of the surrender decision of the Minister: ss. 19.2, 19.4(2) and 25.2(9).

This streamlining vests an original Charter jurisdiction in provincial appellate courts and enables those courts to receive an adequate evidentiary record of the kind usually compiled in trial or pre-trial courts. If the proper factual basis upon which the Charter issues engaged in the surrender phase of the process has not yet been constructed, the court of appeal will have to receive such evidence in whatever form it deems appropriate.

Since the court of appeal is the competent judicial forum of original jurisdiction under the Act to receive such evidence, its admissibility would obviously not be subject to the Palmer test governing the admissibility of fresh evidence on appeal: Palmer v. The Queen , 1979 CanLII 8 (SCC) , [1980] 1 S.C.R. 759 , 50 C.C.C. (2d) 193 , 106 D.L.R. (3d) 212 . [ 65 ] And at ¶ 84 and 100, Arbour J. summarized her analysis: In short, evidence that relates to matters falling outside the ambit of the extradition judge's jurisdiction, such as ss. 6 or 12 issues, can be presented in one of three ways: (

i) the extradition judge has the discretion to hear all or some of the evidence, on grounds of expediency, and thereby put the issues on the record without deciding on the alleged Charter breach; (ii) the Minister can receive affidavit evidence and/or call a discretionary hearing; and (iii) the provincial court of appeal may receive such evidence when it judicially reviews the Minister's decision on surrender.

The extradition judge may only order the production of materials relevant to the issues properly raised at the committal stage of the process, subject to his or her discretion to expand the scope of that hearing to allow the parties to establish the factual basis for a subsequent Charter challenge, when it is expedient to do so, including, obviously, when there is at least an air of reality to the Charter claims ( Dynar , supra , per Cory and Iacobucci JJ., at para. 141).

Requests for disclosure of materials related to issues which properly belong to the executive phase of extradition, and to the judicial review thereof, have no independent relevance before the extradition judge and are subsumed in his or her discretion to hear evidence related to such issues. [ 66 ] In that case, Arbour J. concluded that the substance of the discussions between the U.S. and Canada regarding a decision to prosecute Kwok might have been relevant, at most, to a possible future breach of s. 6. That breach would occur, if at all, at the surrender stage of the process.

While there was a residual discretion in the extradition judge to allow evidence on certain issues in a proper case and order disclosure accordingly, for reasons of convenience and to expedite further the full disposition of the issues, there was no need to resort to it in that case. [ 67 ] Although Bennett J. declined to order disclosure for the purposes of the committal hearing in Cheema , supra , she agreed that the extradition judge has the discretion to order limited disclosure to assist in creating a record for the Minister in certain cases.

She cautioned, at ¶ 91: This disclosure should be permitted only in circumstances where a foundation or "air of reality" exists to suggest that the Canadian authorities have in fact been involved in misconduct that may amount to a breach of the fugitive's Charter rights. The so-called "fishing expeditions" should be avoided. The extradition judge cannot lose sight of the fact that extraditions are to be conducted in an expeditious

and speedy fashion. [ 68 ] Bennett J. ordered disclosure of certain documentation relating to conduct of the RCMP alleged to be illegal for the purpose of creating a record for review by the Minister and the appellate court. [ 69 ] On the disclosure application in Licht , Dillon J. noted that if she had not ordered disclosure for the purpose of the committal proceedings, she would have been inclined to exercise her discretion to allow the disclosure sought for the purpose of creating a record for the Minister. [ 70 ] In USA v.

Earles, 2003 BCCA 20 , the extradition judge had declined to permit the person sought to cross-examine the American prosecuting attorney whose affidavit was filed in support of the application for extradition. The applicant argued on appeal, inter alia, that the refusal prevented him from putting a record of evidence before the Minister that may have caused her to exercise her discretion in his favour. Finch C.J.B.C. for the Court found that the extradition judge had not erred.

That decision was within his discretion and he was not bound to hear evidence that was relevant only at the Ministerial phase. [ 71 ] While the Court has a discretion to create a record on grounds of efficiency, I do not find grounds to do so in this case. The issues relevant to the committal proceedings are not entwined with the factual basis upon which the Charter challenge will ultimately be made. In this case, the proper place for any request for disclosure is after committal, if committal is ordered. To make the order requested at this stage would be to authorize a “fishing expedition”.

Conclusion: [ 72 ] I do not find any air of reality to the Applicants’ submission that the impugned delay in the commencement and re-commencement of the extradition proceedings will affect the fairness of the extradition hearing. The egregious facts found in cases such as Cobb and Licht , where the breach of the applicant’s Charter rights blatantly imperilled the fairness of the extradition hearing, are absent here. [ 73 ] Moreover, there is insufficient evidence to support the proposition that any delay to date has been inordinate.

In Askov , supra, and Morin , supra, the Court considered the delay in the context of the institutional resources and constraints. Here, there is no evidence of the parameters of the length of time that elapses or should elapse in a “normal” extradition proceeding. Factors may include the institutional resources of the requesting state and the Minister, the complexity of the case, the volume of material to review in order to make a decision as to whether the treaty requirements have been met.

Further, in this case, the extradition hearing would have been concluded in June 2001 had the Applicants not successfully applied to quash the ATP. While they were entitled to bring that motion, it was predictable that the application would entail further delay. [ 74 ] If the Applicants are committed by at their extradition hearing, they can seek disclosure from, and make submissions to, the Minister regarding an alleged delay. He or she can consider the issue of delay and its effects on them in deciding whether to surrender them.

If the Minister orders surrender, his or her decision is subject to judicial review by the Court of Appeal (with a further appeal to the Supreme Court of Canada). The Court of Appeal now has original jurisdiction to order disclosure: R. v. Larosa (2002), 2002 CanLII 45027 (ON CA) , 166 C.C.C. (3d) 449 (Ont. C.A. ) . [ 75 ] Finally, if they are committed and surrendered, the Applicants can also raise the issue of delay at their trial in the USA .

The Sixth Amendment guarantees the right of an accused person to a speedy and public trial. [ 76 ] I also conclude that this is not an appropriate case to exercise my discretion to order disclosure for the purpose of creating a record for the Minister’s review. Again, there is no evidence to support a future argument that delay in this case has infringed the Applicants’

section 7 Charter rights. However, the Applicants are not foreclosed from seeking disclosure and making that argument at the surrender stage, should it arise, or de novo in the appellate court. [ 77 ] In

summary, the application is dismissed. “M.J. Allan, J.” The Honourable Madam Justice M.J. Allan