IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

United States of America v. Argueta-Gonzalez,

 

2017 BCSC 2459

Date: 20171215

Docket: 27228

Registry: Vancouver

In the Matter of the Extradition Act, S.C. 1999, c. 18 as amended

and

In the Matter of

The Attorney General of Canada on behalf of

the United States of America

and

Hugo Argueta-Gonzalez also known as Hugo Ramon Castillo-Colunga,
Hugo Castillo, Hugo Colunga, Hugo Sigfredo Argueta-Gonzalez,
Hugo Sigfredo Argeta Gonzalez, Hugo Sigfredo Argueta‑Gonzalez,
Hugo Sigfred Argueta-Gonzalez and Tony

Before: The Honourable Madam Justice Winteringham
(appearing by teleconference)

Oral Reasons for Judgment

Disclosure Application

Counsel for Attorney General of Canada

on behalf of the Requesting State:

S.M. Repas

Counsel for the Person Sought:

G. Botting

Place and Date of Hearing:

Vancouver, B.C.

December 8, 2017

Place and Date of Judgment:

Vancouver, B.C.

December 15, 2017


 

[1]             THE COURT:  The United States of America (the Requesting State) seeks the extradition of Hugo Argueta-Gonzalez (the person sought) for prosecution in relation to conduct which corresponds to the offence of trafficking in Schedule I substances, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19.  The Minister of Justice issued an Authority to Proceed under s. 15 of the Extradition Act, S.C. 1999, c. 18 authorizing the Attorney General of Canada to bring this extradition proceeding.  The identity of Mr. Argueta-Gonzalez as the person sought by the requesting state is not admitted.

[2]             The extradition hearing is currently set for February 14 and 15, 2018.  Mr. Botting, counsel for Mr. Argueta-Gonzalez, applies for disclosure of materials from the requesting state.  Mr. Repas and Ms. Benton, counsel for the Attorney General of Canada, take the position that Mr. Argueta-Gonzalez has not met the legal test for disclosure in this extradition proceeding.

Notice of Application

[3]             The Notice of Application for Disclosure was presented in the context of an anticipated application for a Charter remedy and submissions were made that the material sought was required to advance the Charter argument. 

[4]             In the Notice of Application, Mr. Argueta-Gonzalez seeks disclosure of:

              1)          the U.S. indictment;

              2)          any and all threats and inducements received by the confidential witness to testify in the manner he has and the terms of the plea agreement made with the confidential witness; and

              3)          copies of the taped conversations and text messages to which Mr. Argueta-Gonzalez is alleged to have been a participant.

[5]             In his Notice of Constitutional Question, Mr. Argueta-Gonzalez alleges breaches of s. 7 of the Charter and the breaches are particularized in this way:

1.    Breach of the fundamental freedoms of the respondent by ineptitude and speculation by the U.S. authorities in relying in the Record of the Case, presented to this court as the sole evidence against the respondent, on the speculative hearsay evidence of an unsavoury witness, without further investigation into of evidence of his motives, thus attempting to subvert the course of justice in these proceedings, in violation of section 7 of the Charter. (R. v. Babos, 2014 SCC 16, [2014] S.C.J. No, 16 (S.C.C.); R. v. Salmon, [2011] O.J. No. 2729 (Ont. S.C.J.). affd 2013 PMCA 203. [2013] O.J. No. 1461 (Ont. C.A.)

2.    This conduct by the U.S. authorities is so egregious as to constitute abuse of process, and acceptance of the Record of the Case into evidence, unchallenged, would bring the administration of justice into disrepute.

[6]             The remedy sought is a stay of proceedings under s. 24(1) of the Charter or, in the alternative, exclusion of evidence, being the Record of the Case (ROC), pursuant to s. 24(2) of the Charter.

[7]             Mr. Argueta-Gonzalez alleges that the s. 7 violations occurred because:

              1)          the ROC purportedly setting out his actions is based entirely on hearsay and speculation by paid or suborned witnesses and therefore the ROC does not meet the test for sufficiency and reliability that is required by s. 32 of the Extradition Act;

              2)          the ROC relying primarily on an unidentified witness without objective evidence, such as professional voice recognition analysis, has been compiled specifically to manipulate this court in order to secure a committal for extradition on unreliable evidence; and

              3)          reliance on such unreliable evidence in the ROC violates s. 7 of the Charter.

[8]             During oral submissions, counsel for Mr. Argueta-Gonzalez stated that the Charter remedy was sought on the basis that Mr. Argueta-Gonzalez was entitled to a remedy because of the manner in which the foreign state gathered evidence, particularly with respect to the confidential witness, and that this conduct constituted an abuse of process.  Counsel also asserted that the delay in implementing the extradition proceedings constituted an abuse of process.

[9]             The Attorney General of Canada takes the position that to obtain additional disclosure, Mr. Argueta-Gonzalez bears the burden of establishing, on the evidence, that the materials at issue are relevant to a properly justiciable Charter issue to which there is an air of reality or to an allegation that the ROC for prosecution is manifestly unreliable to which there must be an air of reality.  He says Mr. Argueta-Gonzalez falls short of meeting his burden on this application and says that the allegations here are speculative assertions of state misconduct amounting to abuse of process. 

[10]         For the purpose of the disclosure application and to place the application into context, the Authority to Proceed and Record of Case were filed as exhibits.

[11]         A review of the evidence summarized in the ROC is necessary to frame the issue and I turn to that now. 

Summary of the Evidence from the Record of the Case

[12]         As set out above, the ROC was filed as an exhibit in the disclosure application. The ROC is signed by an assistant U.S. attorney certifying that the evidence summarized in the ROC is available for trial and is sufficient under U.S. law to justify prosecution. 

[13]         A summary in the ROC sets out that Mr. Argueta-Gonzalez, with others, conspired to distribute narcotics in the U.S. and Canada, including 500 grams or more of methamphetamine, one kilogram or more of heroin, and 500 grams or more of cocaine.  These are all Schedule I substances in Canada.  In addition, the summary alleges that Mr. Argueta-Gonzalez, with others, conspired to import heroin and methamphetamine to the U.S. and conspired to export heroin, cocaine, and methamphetamine from the U.S.

[14]         The ROC then details three specific transactions allegedly involving Mr. Argueta-Gonzalez.  These transactions are particularized in the ROC and I summarize those transactions briefly.

1.     Special Agent Wheeler described an alleged drug transaction that occurred on November 24, 2012, wherein the transaction is alleged to have started with Mr. Argueta-Gonzalez having a number of communications with a confidential witness the day earlier.  This communication is characterized by Special Agent Wheeler as a communication to discuss drug smuggling.  In the ROC, Special Agent Wheeler describes a number of events, including the involvement of other targets in the investigation and that culminated in the U.S. authorities seizing 1.922 kilograms of heroin.

2.     The second transaction described in the ROC is alleged to have occurred in March 2013.  U.S. Border Patrol Agent Delacruz is expected to testify about events that occurred on March 8, 2013, and March 19, 2013, and when Agent Delacruz was operating in an undercover capacity.  Agent Delacruz spoke with a person, not Mr. Argueta-Gonzalez but a person alleged to be working with him, about the potential purchase of heroin.  After this conversation, Agent Delacruz alleges he had a phone conversation with Mr. Argueta-Gonzalez and then met Mr. Argueta-Gonzalez in person.  He describes some subsequent telephone conversations about details relating to the alleged drug sale, including the quality of the substance and pricing, and ultimately Agent Delacruz alleges there was a meeting at the Peace Arch border crossing; however, no deal was reached.  The substance tested related to these communications was stated to be opium.

3.     The third transaction was alleged to have occurred on April 24, 2013.  Special Agent Wheeler is expected to testify that starting on April 16, 2013, and continuing for several days thereafter, the confidential witness had telephone and text communications with Mr. Argueta-Gonzalez.  The communications are alleged to have resulted in the delivery by two individuals, not Mr. Argueta-Gonzalez, of two duffel bags containing 65.5 kilograms of methamphetamine.

[15]         On this disclosure application, counsel seeks the communications, expanded during oral submissions to include text messages, reference in the ROC relating to the 2012, March 2013, and April 2013 transactions. 

[16]         I set out now more fully the positions taken by counsel on this disclosure application.

The Submissions of Counsel for Mr. Argueta-Gonzalez

[17]         Mr. Argueta-Gonzalez submits that the ROC appears to be unreliable.  No affidavit evidence was filed in support of this submission.  Rather, the application proceeded on the basis that the ROC, the authority to proceed, and counsel's submissions were sufficient to satisfy the test for disclosure.

[18]         As set out above, Mr. Argueta-Gonzalez alleges that his rights under s. 7 of the Charter were violated because the Attorney General of Canada, on behalf of the U.S., relies solely on the ROC and the record contains speculative hearsay evidence of an unsavoury witness, without further investigation into evidence of his motives, thus attempting to subvert the course of justice in these proceedings.

[19]         Further, Mr. Argueta-Gonzalez alleges that this conduct by the U.S. authorities was so egregious as to constitute an abuse of process. 

[20]         Mr. Argueta-Gonzalez invites the court to draw inferences from the ROC to support these submissions.  He says as a result of these breaches, he is entitled to one of two remedies, that being a stay or the exclusion of evidence. 

[21]         In addition to written submissions, during the hearing of this application, counsel provided further examples of potential breaches of s. 7 and which would justify the disclosure order sought:

              1)          because there was no professional evidence about voice identification, the case is built on a house of cards;

              2)          that the failure to disclose the U.S. indictment, Mr. Argueta-Gonzalez is unable to determine the jeopardy he faces in the U.S. and is thus unable to make an informed decision about how to proceed;

              3)          that the confidential witness's conduct as revealed in the ROC constitutes entrapment;

              4)          that the authorities should have sought a provisional arrest warrant under s. 13 of the Extradition Act because of the inexplicable delay in bringing Mr. Argueta-Gonzalez to court and the failure to do so makes this whole proceeding subject to Charter scrutiny; and

              5)          pursuant to R. v. Marakah, 2017 SCC 59, Mr. Argueta-Gonzalez's privacy rights were breached because the authorities used text messages and because of this violation, the text messages should be excluded.

[22]         When asked by the court about standing with respect to the seizure of text messages, counsel responded on the basis that Mr. Argueta-Gonzalez would advance the argument that there had been a Charter violation on the basis of a hypothetical, here a hypothetical Canadian, with text messages seized contrary to s. 7.  Mr. Argueta-Gonzalez did not seek to broaden his Charter application to include an allegation that the authorities had breached s. 8 of the Charter

The Attorney General of Canada’s Position

[23]         Counsel for the Attorney General of Canada raised a preliminary concern about the state of the evidentiary record before me on the disclosure application, in part because certification of the evidence by the requesting state vests it with a presumption of threshold reliability.  The ultimate reliability of the evidence is for the trier of fact if extradition is ordered.  Disclosure will only be ordered if there is an air of reality to allegations that either the ROC is manifestly unreliable or to propose claims of a Charter breach that is properly justiciable in the context of an extradition hearing, per United States of America v. Wong, 2017 BCCA 109 at para. 22.

[24]         An air of reality does not arise, the Attorney General of Canada says, from “vague and unsubstantiated suggestions or conjecture and speculation”.  Something more than asserting that the disclosure sought, if produced, will assist in determining the issue which the person seeks to raise is required.

[25]         Counsel submits that Mr. Argueta-Gonzalez has not established an air of reality to his allegations that the ROC is manifestly unreliable, nor has he established that there is any merit to the s. 7 violation as alleged in the notice of constitutional question, nor as it evolved during the disclosure hearing.  The Attorney General of Canada submits that the disclosure application is nothing more than a fishing expedition with speculative allegations of state misconduct made without any evidentiary foundation, and that he has failed to satisfy any of the requirements of the Larosa test.

[26]         With respect to the delay issue, counsel put the submission in this way:

It is not enough for Mr. Argueta [Gonzalez] to simply state that delay exists or that the process by which the extradition request was made was deficient, without providing an evidentiary foundation for why any delay amounts to an abuse of process.  Mr. Argueta [Gonzalez] must provide an "air of reality" to his assertion of abuse of process and he has not done so.    

Disclosure in the Extradition Process

[27]         As stated above, this disclosure application is brought in the context of an anticipated application for Charter relief.  I have also considered this disclosure application in the context of the other issues raised by Mr. Argueta-Gonzalez, including abuse of process in the common law context, and his complaint about the overall reliability of the material.  It is helpful to frame the disclosure application with an overview of the extradition procedure because both disclosure and the use of defence evidence are much more narrowly circumscribed than in domestic prosecutions.

[28]         The role of the extradition judge is set out in s. 29(1)(a) of the Extradition Act:

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;

[29]         At the committal stage, the extradition judge is to consider whether a requesting state has a prima facie case, being some evidence, on all of the essential elements of the offence, that could support a conviction.  The role is described as an important but circumscribed and limited screening function: M.M. v. United States of America, 2015 SCC 62 at para. 36.

[30]         In United States of America v. Hall, 2016 BCSC 1004 at para. 12, Mr. Justice Pearlman set out a summary of the principles governing extradition hearings:

[12]      In his written submissions, counsel for the Requesting State has provided a concise summary of the principles applicable to the assessment of the sufficiency of evidence under s. 29(1) of the Act, as stated by the Court in M.M. and Ferras:

(a)   The inquiry into sufficiency of the evidence to commit for extradition under s. 29(1) involves an evaluation of whether the conduct described by the admissible evidence would justify committal for trial in Canada: M.M. at para. 65, Ferras at para. 46;

(b)   There is a high threshold for refusing committal on the basis that the supporting evidence is unreliable that will only be reached when the evidence is so defective or appears so unreliable that it would be dangerous or unsafe to act on it: M.M.at para. 63, Ferras at paras. 40, 54 and 65;

(c)   The extradition judge is concerned with whether the underlying facts of the charge would, prima facie, have constituted a crime if they had occurred in Canada: M.M. at para. 65;

(d)   The extradition hearing is not a trial and it should never be permitted to become one. The process is intended to be expeditious and efficient so as to ensure prompt compliance with Canada’s international obligations: M.M. at para. 64;

(e)   The extradition judge must consider whether evidence exists upon which a reasonable jury, properly instructed could return a verdict of guilty: Ferras at paras. 38 and 48;

(f)    The extradition judge’s role, like that of the preliminary inquiry justice, is not concerned with defences or other matters on which the accused bears an evidential or persuasive burden: M.M. at para. 65;

(g)   The extradition judge does not determine the guilt or innocence of the person sought or to engage in the ultimate assessment of reliability: M.M. at para. 62, Ferras at paras. 46 and 54;

(h)   The extradition judge is not to weigh competing inferences that may arise from the evidence other than in a limited sense of considering that the inferences sought to be drawn from the circumstantial evidence are reasonable: M.M. at para. 71;

(i)    In assessing the reliability of the evidence, the extradition judge does not make an actual determination that the evidence is in fact reliable. The issue is threshold reliability: whether the evidence tendered possesses sufficient indicia of reliability to make it worth consideration by the extradition judge: Ferras at para. 53; and

(j)    Certification of evidence by the requesting state vests the evidence with a presumption of threshold reliability. The evidence in the ROC is presumed to be reliable and “[unless rebutted, this presumption of reliability will stand and the case will be deemed sufficient to commit for extradition”: M.M. at para. 62, Ferras at para. 66. See also United States of America v. Fester, 2009 BCSC 1331 at para. 10 and Attorney General of Canada v. Rosenau, 2009 BCSC 805 at para. 47.

[31]         The extradition process does not foreclose the person sought from tendering evidence in the proceeding.  However, pursuant to s. 32(1)(c) of the Extradition Act, the evidence must be both reliable and relevant to the test set out in s. 29(1).  Nor does the extradition process prevent the person sought from requesting disclosure from the requesting state, but disclosure is not governed by the principles in R. v. Stinchcombe, because an extradition proceeding is not a trial.

[32]         When dealing with a disclosure application in the extradition context, in United States of America v. Trotter, 2013 BCSC 813, Mr. Justice Cohen summarized the applicable legal principles in paras. 16-24 and he states:

[16]         Extradition proceedings do not involve the same disclosure obligations that arise in domestic criminal proceedings. According to the Supreme Court of Canada in United States v. Dynar, [1997] 2 S.C.R. 462 at paras. 130-31 [Dynar], the procedural safeguards that apply to Canadian criminal trials, such as the onerous duty imposed on the Crown to disclose all relevant material in its possession and control, are a function of the accused’s right to full answer and defence. The extradition process, however, is governed by treaty and statute, and the role of the extradition judge is limited in this context. Moreover, extradition proceedings are not concerned with issues of guilt or innocence: R. v. Kwok, 2001 SCC 18 at para. 99 [Kwok]. The level of procedural safeguards required in extradition proceedings, including disclosure, must be considered in this framework: Dynar at para. 130.

[17]         In Kwok, the Supreme Court of Canada held that materials sought for disclosure in an extradition proceeding must pertain to issues that are properly raised at the committal stage of the process. Writing on behalf of the Court, Arbour J. stated, at para. 100:

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.

[18]         The B.C. Court of Appeal in United States v. Costanzo, 2009 BCCA 120 at para. 25 [Costanzo], interpreted the ruling in Kwok to allow for disclosure of two categories of material:

(a)        those materials upon which the requesting state seeks to rely to establish a prima facie case for committal; and,

(b)        those materials relevant to a Charter issue that is properly justiciable before the extradition judge and to which there is an "air of reality".

[19]         Requests for the latter category of material, that is material in furtherance of a Charter claim that is properly justiciable before the extradition judge, are referred to as “additional disclosure”: Costanzo at para. 27. An applicant will only be entitled to additional disclosure where there is an “air of reality” that the Charter claim can be substantiated: Kwok at para. 100.

[20]         The air of reality test for additional disclosure at an extradition hearing for allegations of state misconduct was first set out by Doherty J.A. in R. v. Larosa (2002), 166 C.C.C. (3d) 449 at para. 76 (Ont. C.A.) [Larosa]:

In my view, before ordering the production of documents and compelling testimony in support of allegations of state misconduct, this court should be satisfied that the following three criteria have been met by the applicant:

·        the allegations must be capable of supporting the remedy sought;

·        there must be an air of reality to the allegations; and

·        it must be likely that the documents sought and the testimony sought would be relevant to the allegations.

[21]         The air of reality test for additional disclosure in Larosa has been adopted by the B.C. Court of Appeal: Scarpitti v. United States, 2007 BCCA 498 at para. 25 [Scarpitti]; United States v. Rosenau, 2010 BCCA 461 at paras. 25, 55 [Rosenau].

[22]         An air of reality means that there must be some realistic possibility that the allegations can be substantiated: Larosa at para. 78.

[23]         The party seeking additional disclosure bears the burden of demonstrating an air of reality by reference to evidence before the court: Larosa at para. 81; Costanzo at para. 29. Mere assertions that the disclosure requested will assist in determining the issue the applicant seeks to raise will not be sufficient: Larosa at para. 74; Costanzo at para. 81. The evidence must provide a “concrete evidentiary basis” to justify an extradition judge embarking on an inquiry concerning an alleged Charter breach: United States v. Wacjman, [2002] 171 C.C.C. (3d) 134 at para. 86 (Que. C.A.). In United States v. Doak, 2012 BCSC 1788 at para. 54 [Doak], Ker J. provided a list of circumstances insufficient to meet the air of reality standard:

The air of reality test mandated by the evidentiary threshold requirement will not be satisfied on:

i.          the basis of "bald assertions" in the notice of motion (see Larosa, at para. 85);

ii.         "vague and unsubstantiated suggestions" (see Turenne v. Canada, 2004 MBCA 79 at para. 5);

iii.         "conjecture or speculation" (see Wacjman, at para. 86); or

iv.        allegations made in the absence of an "offer of proof" (see Freimuth, at para. 13).

[24]         The Larosa test also requires that the allegations support the remedy sought.

[33]         The air of reality test for additional disclosure in Larosa has been adopted by the B.C. Court of Appeal and at para. 22 of Justice Cohen's reasons, he says:

An air of reality means that there must be some realistic possibility that the allegations can be substantiated …

[34]         Justice Cohen went on and confirmed that the doctrine of abuse of process under common law and s. 7 of the Charter applies in extradition proceedings, but he also notes that it includes the notion that the exceptional nature of the remedy, being a stay, is treated no differently in the extradition process.

Application of the Extradition Authorities and Larosa Test to the Disclosure Sought in the Case

[35]         I have considered the authorities set out above and those referred to by counsel during their submissions.  Based on the authorities, there is little doubt, and no one suggested otherwise, that I have the authority to order disclosure, albeit in a more limited fashion than if this was a criminal prosecution conducted in this country.  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 the 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 when there is at least an air of reality to the Charter claims.

[36]         I apply the Larosa test and thus must consider:

·       first, whether the allegations are capable of supporting the remedy sought;

·       second, whether there is an air of reality to the allegations; and

·       third, whether it is likely that the documents sought would be relevant to the allegations.

[37]         I address first the application for disclosure of the U.S. indictment, because the disclosure request for this item proceeded on a different footing than the balance of the materials sought.  During oral submissions and relying on the authority of U.S.A. v. Nguyen, 116 OR (3d) 446, I was advised that Mr. Argueta-Gonzalez sought disclosure of the U.S. indictment for the purpose of informing himself about his legal options in response to this extradition proceeding.

[38]         I am not satisfied, based on the material before me on the disclosure application, that the test has been met on any front for me to order the production of the U.S. indictment, whether in consideration of: first, making an informed legal decision; or second, as it relates to the abuse of process submission.

[39]         At the committal phase, I am required to consider whether the conduct alleged in the authority to proceed constitutes conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offences set out in the authority to proceed.  Here the authority to proceed states the Canadian offences which correspond to the alleged conduct is trafficking in Schedule I substances contrary to s. 5 of the Controlled Drugs and Substances Act.

[40]         I do not consider myself bound on this case by the Nguyen decision and I am not persuaded by it in the context presented here.  I would only say that the facts presented on the disclosure application in Nguyen unfolded in a very different way than those presented here.

[41]         I have also considered U.S. v. Ranga, 2010 BCSC 1999, where Justice Silverman stated:

[16]      The question of whether or not the charging document, in this case, the United States indictment, is required to be produced at an extradition hearing has been answered in the negative by the Ontario Court of Appeal in R. v. Saad, reported at (2004), 183 C.C.C. (3d) 97.  In the absence of a compelling reason not to follow the Court of Appeal of a sister province, I am satisfied that I must do so, and in this case I certainly do so.  For those reasons, I reject the first of the respondent's arguments.

[42]         I turn to the second type of disclosure sought, which is material relating to any and all threats and inducements received by the confidential witness to testify in the manner he has and the terms of the plea agreement made with the confidential witness.

[43]         Here, Mr. Argueta-Gonzalez alleges that the confidential witness is a person of unsavoury character and therefore his evidence is unreliable.  Disclosure is required, it is said, to fully demonstrate the improvident dealings with the confidential witness which are said to constitute an abuse of process. 

[44]         I find that the disclosure sought relating to the confidential witness does not satisfy the Larosa test.  There is no air of reality to the claim that the evidence of the witness affected by the disclosure sought may be manifestly unreliable.  In addition, the use of a confidential witness is not capable, in and of itself, of supporting a breach of s. 7, let alone an entitlement to any remedy.  In addition, the use of a confidential witness, in and of itself, does not constitute a common law abuse of process; more is required.

[45]         Finally, the inferences Mr. Argueta-Gonzalez asks me to draw about state misconduct are not ones I can permissibly draw on the evidentiary record before me.  Based on the material before me on the disclosure application, there is no evidence suggesting any improvident arrangement between the U.S. authorities and the confidential witness.  It would be pure speculation at this stage and on the record before me to conclude, as Mr. Argueta-Gonzalez asks, that the sole evidence against him, as reflected in the ROC, is the speculative hearsay evidence of an unsavoury witness.

[46]         I add this with respect to the submission that the delay constitutes an abuse of process.  In determining the disclosure requests in the context of the concerns raised about delay, I have considered Chief Justice Finch's remarks in U.S.A. v. Gillingham, 2004 BCCA 226, where he addressed delay in the extradition context:

[91]        However, for such delay to amount to a violation of s.7 or an abuse of process at the committal stage, the fugitive must show that the delay caused prejudice in the sense that it compromised the fairness of the extradition proceedings.  This is consistent with the limited Charter jurisdiction of the extradition judge:  Reumayr, supra 12.  The prejudice requirement is also consistent with criminal law jurisprudence which requires an accused to show that pre-charge delay has prejudiced the right to full answer and defence in order to make out a s.7 Charter or abuse of process claim:  see R. v. Castro (2001), 157 C.C.C. (3d) 255, 2001 BCCA 507 41; R. v. Dhillon (2001), 157 B.C.A.C. 124, 2001 BCCA 555 36, 42-43.

[92]        In Reumayr, supra 14, Mackenzie J.A. also seemed to allow that delay could amount to an abuse of process at the committal stage in the absence of proof of prejudice to the fairness of the extradition proceedings, but only in exceptional cases where that delay is “egregious and likely to continue”.  He relied on R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, a criminal case and not an extradition case, to support the existence of this “residual category” of delay which may be contrary to the principles of fundamental justice.

[93]        In United States of America v. Canada (Minister of Justice), supra 55-61, Madam Justice Allan thoroughly reviewed the jurisdiction of the extradition judge to issue a Charter remedy for delay.  She concluded that delay will only result in a stay of proceedings at the committal stage if it has rendered the extradition hearing unfair.  She held that the second, residual category of delay – where there is no prejudice to the extradition proceedings themselves but the delay is nevertheless oppressive and fundamentally unjust – properly falls to the Minister’s consideration.

[94]        Admittedly, this division of responsibility for who can grant a remedy for which type or degree of delay may give rise to inefficiencies.  However, in my view, Allan J.’s conclusion is consistent with the limited Charter jurisdiction of the extradition judge.  It is also consistent with what I take as the direct holding of Reumayr, supra 10-12.  In addition, other decisions impliedly accept that it is for the Minister to consider claims which assert that surrender in light of lengthy delay would be simply unacceptable or shocking to the conscience of Canadians:  United States of America v. Chao, 2003 BCCA 458 26, leave to appeal refused [2003] S.C.C.A. No. 407 [Chao]; United States of America v. Bonamie (2001), 293 A.R. 201, 2001 ABCA 267 67-70 [Bonamie].

[95]        Accordingly, I accept that Mr. Gillingham can raise the issue of Montana’s delay in enforcing its probation order and seeking his extradition on the appeal from the committal order.  However, to succeed at this stage, he must show that the delay has caused prejudice in the sense that it compromised the fairness of the extradition proceedings.

[47]         There was no evidence tendered before me to explain what had occurred between the last alleged transaction involving Mr. Argueta-Gonzalez in April 2013, and the obtaining of the authority to proceed in 2016.

[48]         I was not provided any evidence about why any delay here would constitute an abuse of process requiring a remedy.  While delay by the requesting state can constitute an abuse of process that may be considered by the extradition judge, the delay must be shown to have compromised the fairness of the extradition proceeding.

[49]         Mr. Argueta-Gonzalez did not present any evidence establishing the delay by the U.S. in seeking his extradition compromised the fairness of the proceeding in this case.

[50]         I find that the submissions here are precisely what Madam Justice Ker warned against in USA v. Doak and others, 2012 BCSC 1788 and as cited by Justice Cohen in Trotter.  The applicant cannot rely on bald assertions.  The disclosure order cannot be based on vague and unsubstantiated suggestions or on conjecture or speculation, and if the allegations of state misconduct are to be advanced, they cannot be made in the absence of an offer of proof, as they were here.

[51]         Third, with respect to Mr. Argueta-Gonzalez's request for production of the intercepted communications, including any text messages involving him and the confidential witness, here Mr. Argueta-Gonzalez asserts that there is no evidence presented in the ROC that anyone who identified Mr. Argueta-Gonzalez's voice had any special expertise in voice recognition, and thus the disclosure is required so Mr. Argueta-Gonzalez can assess the recordings himself. 

[52]         Mr. Argueta-Gonzalez does not allege in this application that the interceptions were unlawfully obtained.  Rather, he appears at para. 6 of his submission to require the disclosure so it can be examined.  Again, in the face of the ROC that says there is reliable and admissible evidence regarding the intercepted communications identifying Mr. Argueta-Gonzalez as the person communicating in the calls, I find this submission suffers from the same flaws as cited above relating to the disclosure of the confidential witness information.

[53]         Subject to what occurs in the committal and should it come to this, the surrender phase, Mr. Argueta-Gonzalez may have an opportunity to test the recordings and texts, but based on the record before me, that time is not now.

[54]         The application for disclosure is dismissed and Mr. Argueta-Gonzalez is to appear on February 14, 2018, at 10:00 a.m. in Vancouver for the committal hearing.

“Winteringham J.”