Citation: Re: Extradition Tommy Kinchen Ho 2000 BCSC 153 Date: 20000126 Docket: CC990288 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF THE REQUEST FOR EXTRADITION OF TOMMY KINCHEN HO BY THE GOVERNMENT OF AUSTRALIA PURSUANT TO THE EXTRADITION ACT AND IN THE MATTER OF AN APPLICATION FOR DISCLOSURE PURSUANT TO S.7 OF THE CHARTER OF RIGHTS AND FREEDOMS AND S.25 OF EXTRADITION ACT BETWEEN: KIN CHUEN TOMMY HO APPLICANT AND: THE COMMONWEALTH OF AUSTRALIA RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE S.R. ROMILLY Counsel for the Applicant: P. Michael Bolton, Q.C. Alexandra Booth Counsel for the Respondent: Roger McMeans Place and Date of Hearing: Vancouver, B.C. January 16 and 17, 2000 Background to this application [1] Australia has requested the extradition of Tommy HO (the þApplicantþ) to stand trial in Australia for importing heroin to Australia. An extradition committal hearing has been scheduled to commence May 17, 2000 in B.C. Supreme Court. In this application for disclosure, the Applicant seeks an Order granting the disclosure of þcorrespondence between Canadian and Australian Authorities and all notes, reports, memoranda and correspondence in the possession of the Canadian Authorities which is related to the delay that has occurred in this matterþ. [2] This disclosure is said to be necessary þto permit the Applicant to determine if his Constitutional rights pursuant to ss. 7 and 11(b) of the Charter of Rights and Freedoms has been infringed by the actions of the Canadian Authorities and to make submissions in this regard to the Minister of Justice if necessaryþ. [3] The application is opposed by the Respondent. In order to fully understand the position taken by the Applicant, it may be prudent to give a brief summary of the evidence concerning the delay alleged following the making of the request for extradition. Summary of the Evidence concerning delay following the making of the request for extradition [4] The Applicant submits that, although the Government of Australia issued a warrant for the Applicantþs arrest on the charges which form the basis of the extradition request on November 19, 1996, they did not formally request the Applicantþs extradition until September 1998 and that no explanation for the delay is evident in the material disclosed to the Applicant thus far. The Applicant further submits that the Canadian authorities have been conducting their own investigation of the Applicantþs activities and that the Australian authorities have been communicating with both the Proceeds of Crime Division and the Vancouver Drug Section of the RCMP outside of the requests of Australia made pursuant to the Mutual Legal Assistance in Criminal Matters Act. [5] The Applicant further submits that the Applicant was arrested in Burnaby, British Columbia on February 23, 1999 on charges of conspiracy to import heroin and importation of heroin. The Applicant was ordered released on that charge on March 19, 1999. The Australian warrant for the Applicant was not endorsed until after the Applicantþs arrest and release on the Burnaby charges. He was not arrested on the extradition request until March 22, 1999. [6] The Applicant submits that on the basis of the material provided to the Applicant, the most plausible explanation for the delay between November 1996 and September 1998 was to avoid interference with the Canadian investigation of the Applicant. [7] Counsel for the Respondent, in painstaking detail, outlined the reason for the delay. He points out that Constable Michael Hiller of the R.C.M.P. has provided an affidavit which explains the reason why no warrant to obtain the Applicant was obtained until March, 1999. He summarizes Constable Hillerþs evidence as follows: On September 30, 1998, a request for the extradition of Tommy HO was received by the Department of Foreign Affairs and International Trade in Ottawa. This request was then delivered to the International Assistance Group of the Department of Justice, Ottawa, where it was reviewed by counsel, Mr. Jacques Lemire. Following his review of the request and the supporting material, the request was sent from Ottawa on December 14, 1998, to the Vancouver office of the Department of Justice because HO was believed to be living in Vancouver. Department of Justice counsel, a local member of the R.C.M.P. Drug Squad, and an officer from the Australia Federal Police reviewed Australiaþs affidavit evidence throughout the second week of January, 1999. In the course of the review of the evidence, it became clear that the case in Canada for the committal of HO for extradition depended on the evidence of an accomplice, FU. No other direct evidence implicating HO was contained in the Australian request. In his affidavit, FU identified a photograph of a person who he said was HO. There was no evidence in the extradition package to prove that the photograph of the man identified by FU was a photograph of HO. HO has never been to Australia. When HOþs name surfaced in the Australian investigation, Australia contacted the RCMP and asked them for a photograph of HO. In late 1994, the RCMP obtained a copy of HOþs photo from his 1990 B.C. drivers licence from the Motor Vehicle Branch and sent the copy of the photograph to Australia. Australia was advised that if they needed the photograph for court purposes in Australia, that they should make a formal request for the photo and HOþs drivers licence record under the Mutual legal Assistance Treaty between Canada and Australia. Australia then applied for legal assistance under the treaty and requested among other things a copy of HOþs B.C. drivers licence photo, and related information. The photo and related drivers licence information that was sent to Australia was the current data and photo retained by the Motor Vehicle Branch. HOþs licence came up for a 5 year renewal in March, 1995, and a new drivers licence photo was taken at that time. This was the photo which was sent to Australia. As a result, while the witness FU had identified a 1990 drivers licence photo of HO, and while Australia applied for a copy of the photo and material to relate the photograph to the licence holder Tommy HO, the photo they received pursuant to the Order of Dohm, ACJ, was not the photo which FU had identified, but the more recent one. Australia included the records they had received under the MLAT treaty relating to HOþs 1995 drivers licence in the material it sought to rely on in support of the extradition request. Evidence in Fugitive Offender proceedings could be adduced by affidavit or led viva voce. On reviewing Australiaþs affidavit evidence and discovering that there was no documentary evidence to prove the 1990 photograph of HO, the investigating officer was asked to try to find documentary evidence in Canada which could be led to relate the 1990 photo identified by FU to Tommy HO. The investigating officer learned that ICBC, the agency in charge of drivers licences, did not have a copy of HOþs 1990 drivers licence photo. The R.C.M.P. did not have a copy of HOþs 1990 drivers licence, but had retained only a photocopy of a photo that they had received from the Motor Vehicle Branch. Therefore, there was no known documentary evidence available in Canada to prove that the man identified by FU as being HO was in fact HO. Upon discovering that there was no evidence either in the Australian affidavits or which could be called in Canada to prove that the man in the photograph was HO, the Australian officer was advised by Department of Justice counsel in the second week of January, 1999 that there was insufficient evidence of identity of the wanted person to initiate the extradition process. He was told that that evidence of identity had to be established on a balance of probabilities, and that a 9 year old photograph without evidence that the person in the photograph was the man wanted for extradition would not provide sufficient evidence to warrant his committal. As a result, a further photo line-up was conducted in Australia, this time using a copy of the photograph from HOþs 1995 B.C. Drivers Licence. FU identified the photograph from HOþs 1995 drivers licence as being the man that had arranged for him to smuggle heroin from China. This was the same photograph that was as exhibited to the affidavit of Sylvia Montagnaro of the Licence and Certification Unit of I.C.B.C. and which was sent to Australia upon the Order of Dohm, ACJ, as part of the Mutual Legal Assistance which had been requested by Australia under the treaty between Canada and Australia for Legal Assistance. This affidavit, together with an affidavit of an interpreter and of the officer who showed FU the photo line-up, were sent to Canberra, where they were made part of the supplemental evidence presented by Australia in support of the extradition request. The supplemental package of evidence was delivered on February 16, 1999 through the diplomatic channel to the Ministry of Foreign Affairs and International Trade in Ottawa. It was subsequently delivered to the Department of Justice, Ottawa, and was sent from Ottawa on February 19, 1999, presumably arriving a day or two later. After this additional evidence was received, and a supporting application was prepared, Department of Justice Counsel applied before Madam Justice Levine on March 1st to have the Australian arrest warrant endorsed. In the course of that Application, Madam Justice Levine asked if she had jurisdiction to make (sic) endorse the warrant where the supporting material did not disclose that FU (sic)] had ever been to Australia. Counsel asked to adjourn the application to find some law on this point. On March 19th, 1999, I resumed the application before Madam Justice Levine, and at the conclusion of my submissions, Levine J. endorsed the Australia arrest warrant. HO was arrested 3 days later. Ho has been in custody since that date. On June 17, 1999, the new Extradition Act came into force. The new Act required an Authority to Proceed to be prepared on behalf of the Minister of Justice. The Authority to Proceed was issued on July 26th, 1999. The new Act completely changed the rules governing the admission of evidence from those contained in the Fugitive Offenders Act. As a result, none of the material Australia had previously sent to support its request for the extradition of HO would be admissible in proceedings under the new Act. Australia was advised of the provisions of the new Act and prepared evidence, by way of a þRecord of the Caseþ to support its request under the new Act. A copy of the record of the case was faxed to the Department of Justice, Ottawa, in July. The Department of Justice Ottawa believed this to be a draft. In early September, Australia confirmed that this was the record of the case they sought to rely on, and dispatched the original of that document from Canberra on or about the same date. Counsel for Ho was provided with a copy the same day. Counsel for The Applicant has copies of all of the material provided by Australia in support of its request for the extradition of Ho. Mutual Legal Assistance requests Legal assistance between Canada and Australia is governed by the treaty between Canada and Australia and by the Mutual Legal Assistance in Criminal Matters Act. No foreign request for assistance under the treaty may be acted upon without the approval of the Minister of Justice. All requests for assistance under the Act must be directed to the Minister. The Minister of Justice has approved several MLAT requests from Australia in relation to their prosecution of HO. The assistance sought in the first two requests dated September 9, 1995 and September 24, 1996 resulted in orders being obtained from the B.C. Supreme Court for evidence to be obtained and sent to Australia. The assistance sought in the last two requests dated August 6th, 1998 and January 22, 1999 was ordered to be transmitted to Australia in December, 1999. Counsel for The Applicant has copies of all material relating to these MLAT requests. None of the affidavits or exhibited documents sent from the Canadian Government to Australia pursuant to these MLAT requests would have been admissible in Hoþs extradition proceedings in Canada. This is because the Fugitive Offenders Act provided for the admission only of affidavits taken in the requesting country. These affidavits are similarly not admissible in proceedings under the new Extradition Act. Therefore, in order for any of this potential evidence to be before a Canadian extradition court, the witnesses who have this evidence to give would have to be called viva voce, or affidavits would have to be taken in Canada in compliance with the provisions of the Canada Evidence Act for various company records to be admitted. The new Extradition Act provides for the requesting state to summarize the evidence available to be led against a fugitive in its þRecord of the Caseþ. Evidence obtained in Canada could not be summarized and included in Australiaþs Record of the Case because of s. 32(2) of the Act, which requires that evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted. Therefore if Australia wanted to rely on any of the evidence which was the subject of earlier requests for legal assistance, that evidence will have to be called viva voce at the hearing or otherwise tendered in a manner that complies with the rules governing admissibility of evidence in Canadian criminal proceedings. [8] In sum, the Respondent maintains that there is no evidence that the delay between November 1996 and September 1998 in Australia initiating its request for extradition was orchestrated at the request of an agent of the Canadian government. Moreover, there is no evidence that any of the Applicantþs Charter rights have been violated. Issues raised by this application [9] This application for disclosure raises the following issues: 1) Under what circumstances does an extradition judge, in discharging his duty under the Extradition Act, have jurisdiction to order disclosure of material in the possession of the requested state? 2) If the material which is sought is not relevant to any of the functions that the judge is required to perform under the Extradition Act, does the judge have jurisdiction to order disclosure þto assist the Minister of Justiceþ in the Ministerial phase of the extradition process? 3) If the judge does have jurisdiction to order disclosure of material in the possession of the Canadian government, has the Applicant established an þair of realityþ that if he were given this material that he would be able to establish a Charter breach? The Applicable law Functions of the Judge and the Minister under the Act [10] Extradition from Canada is governed by the Extradition Act. That Act assigns specific functions to both the extradition committal judge and to the Minister of Justice. There are no overlapping areas of responsibility under the Act shared by the extradition judge and the Minister. Broadly stated, the Minister is responsible for receiving the request from a foreign state and determining initially whether the request accords with Canadian law and therefore can be acted upon. If so, the Minister assigns counsel for the requesting state, and the extradition committal hearing takes place before a Supreme Court judge. At the hearing, the extradition judge exercises the same powers as near as may be, as a justice conducting a preliminary inquiry under the Criminal Code. If the extradition judge finds sufficient evidence to establish a prima facie case of an extraditable offence, he or she orders the fugitive committed, there to await the decision of the Minister whether to order the fugitiveþs surrender to the requesting state. [11] In conducting an extradition committal hearing, a judge may exercise only such jurisdiction as is conferred upon him or her by the Act. The modest role of the extradition judge is to conduct a hearing, rule on the admissibility of evidence at the hearing, and at the conclusion of the hearing, determine whether there is evidence of conduct on the part of the fugitive which, had it occurred in Canada, would establish a prima facie case of an offence for which extradition could be ordered. If so, he or she is required by s. 29(1)(a) of the Act to commit the fugitive to await the decision of the Minister of Justice whether to order the fugitiveþs surrender under s. 40 of the Act. Otherwise, he or she is required to discharge the fugitive. [12] Once the fugitive is committed by the extradition judge, a further decision-making process takes place. The Minister of Justice is required to determine whether it is appropriate, in all of the circumstances of the case, to order the surrender of the fugitive to the requesting state. In so doing, the Minister must receive and consider all submissions and representations made to her by the fugitive. The Charter applies to the Ministerial phase of the extradition process and a decision by the Minister to surrender a fugitive to the requesting state may be reviewed by the relevant provincial Court of Appeal, and may be quashed if the decision to surrender is one which violates a fugitiveþs rights under the Charter: United States v. Dynar (1997), 115 C.C.C. (3d) 481 at para. 123 (S.C.C.). There is a further avenue of appeal, with leave, to the Supreme Court of Canada. [13] In the scheme for extradition from Canada there are no areas of joint jurisdiction shared by the Minister and the extradition judge. The Minister may not review the determination of the trial judge as to the admissibility of evidence or of there being sufficient or insufficient evidence to commit. Similarly, the extradition judge may not rule on matters specifically assigned to the Minister: United States of America v. DþAgostino, [1997] 41 C.R.R. (2d) 325 at 338 (Ont.Ct.Gen.Div.). [14] This division of extradition-related issues between the Minister and the extradition judge leaves to the Minister all issues surrounding whether it is fair and appropriate to surrender a fugitive to the requesting state. Therefore, any issue concerning whether a fugitive will receive a fair trial or will be dealt with fairly in the requesting state falls to the Minister to decide. The Charter jurisdiction of the extradition judge [15] The jurisdiction of an extradition judge to determine Charter issues is set out in s.25 (formerly s. 9(3)) of the Extradition Act which states: 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. [16] The Quebec Court of Appeal in Regina v. Cazzetta (1996), 108 C.C.C. (3d) 536 (Que.C.A.) interpreted s. 9(3) (now s. 25) of the Extradition Act as giving to the extradition judge the jurisdiction to determine all Charter cases. However, in United States of America v. Kwok (1998), 127 C.C.C. (3d) 353 (Ont.C.A.) Charron J.A., on behalf of the Court, wrote that Cazzetta was wrongly decided. She stated: The Supreme Court of Canada in Dynar, which was decided after Cazzetta, is instructive on this issue. While the Court in Dynar did not find it necessary to define the scope of the Charter jurisdiction conferred upon the extradition judge by s. 9(3), it is clear from the reasons in the majority judgment that the pre-amendment cases on the modest role of the judiciary in the extradition process are still applicable. Whatever Charter jurisdiction is conferred on the extradition judge by s. 9(3) must be read in the light of this limited role. [17] I simply adopt the reasoning in Kwok, supra. Having done so, I now have to decide whether I should order the disclosure requested by the Applicant. Jurisdiction of the extradition judge to make the disclosure order [18] In deciding whether I have jurisdiction to make the disclosure order requested by the Applicant, it is my view that the decision in Dynar, supra, is, again, particularly instructive. In Dynar a Canadian citizen faced extradition proceedings in the United States based on alleged criminal conduct which occurred in Canada. The United States relied solely on evidence gathered by the American authorities. There was, however, evidence of some involvement in the investigation by the Canadian authorities. Dynar submitted that he was entitled to full disclosure of the investigation by the Canadian authorities in order to allow him the right to establish a violation of his Charter rights. His request was denied by the authorities. The Supreme Court rejected his argument since no justiciable Charter issue arose in the case. The Court held that Dynar was not entitled to disclosure beyond the production of the evidence that the requesting state was relying upon to establish its prima facie case. Iacobucci and Cory JJ., for the majority, reviewed the limited purpose of the extradition hearing and the function that an extradition judge is required to perform in applying the Act. Although the comments deal with the former Extradition Act (repealed and replaced by new Act, June 17, 1999), the functions assigned to a judge under the new Act are the same. At paras. 119 to 122 of the decision in Dynar, the Court said: The purpose of an extradition hearing for a fugitive accused of a crime in another jurisdiction is outlined in s. 18(1)(b), which provides: 18(1) The judge shall issue a warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law, þ (b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify the committal of the fugitive for trial if the crime had been committed in Canada. The extradition judge must determine whether the fugitive should be committed for surrender, which is to say whether a prima facie case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada. [120] The jurisdiction of the extradition judge is derived entirely from the statute and the relevant treaty. Pursuant to s. 3 of the Act, the statute must be interpreted as giving effect to the terms of the applicable treaty. La Forest J. writing for the majority in Re McVey, [1992] 3 S.C.R. 475 at 519 (S.C.C.), stated that þcourts must find a statutory source for attributing a particular function to the extradition judgeþ, and that þcourts should not reach out to bring within their jurisdictional ambit matters that the Act has not assigned to them.þ In particular, it was held in Republic of Argentina v. Mellino, [1987] 1 S.C.R. 536 at p. 553, 33 C.C.C. (3d) 334, 40 D.L.R. (4th) 74 that: þabsent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed [Emphasis added]. As a result, the role of the extradition judge has been held to be a þmodest oneþ, limited to the determination of whether or not the evidence is sufficient to justify committing the fugitive for surrender: See for example United States of America v. Lepine, [1994] 1 S.C.R. 286 at p. 296, 87 C.C.C. (3d) 385, 111 D.L.R. (4th) 31; Mellino, supra, at p. 553; McVey, supra, at p. 526. [121] One of the most important functions of the extradition hearing is the protection of the liberty of the individual. It ensures that an individual will not be surrendered for trial in a foreign jurisdiction unless, as previously mentioned, the Requesting State presents evidence that demonstrates on a prima facie basis that the individual has committed acts in the foreign jurisdiction that would constitute criminal conduct in Canada. See McVey, supra, at p. 519; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228 at p. 245, 14 C.C.C. (2d) 209, 41 D.L.R. (3d) 549 per Laskin J; Canada v. Schmidt , [1987] 1 S.C.R. 500 at p. 515, 33 C.C.C. (3d) 193, 39 D.L.R. (4th) 18. The extradition judge may also have limited Charter jurisdiction under s 9(3) of the amended Extradition Act, although it is not necessary to delineate to scope of that jurisdiction in this appeal. [122] A judge hearing an application for extradition has an important role to fulfill. Yet it cannot be forgotten that the hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canadaþs international obligations. As La Forest J. stated for the majority in McVey, supra, p. 551, þextradition proceedings are not trials. They are intended to be expeditious procedures to determine whether a trial should be heldþ. In fact, in some contexts, a requirement for more þtrial-likeþ procedures at the extradition committal stage may þcripple the operation of the extradition proceedingsþ: McVey, supra, at p. 528. See also Schmidt, supra, at p. 516. [Emphasis added] [19] It is clear from this quotation that the role of the extradition judge is a þmodestþ one in holding, not a trial, þbut an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canadaþs international obligations.þ The procedure is to determine whether a prima facie case has been made out that would justify the Applicantþs committal for trial if his conduct had taken place in Canada. No part of the judgeþs 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. At para. 132 of Dynar, supra, Iacobucci and Cory JJ. stated: The statutory powers of an extradition judge arelimited. The hearing judge may receive sworn evidence offered to show the truth of the charge or conviction (s.14), receive evidence to show that the particular crime is not an extradition crime (s.15), and to take into account sworn, duly authenticated depositions or statements taken in a foreign state (s.16). The obligation on the Requesting State is simply to establish a prima facie case for the surrender of the fugitive and it is not required to go further than this. The committal hearing is neither intended nor designed to provide the discovery function of a domestic preliminary inquiry. See Philippines (Republic of) v. Pacificador (1993), 14 O.R. (3d) 321 (C.A.), at pp. 328-39, 83 C.C.C. (3d) 210, leave to appeal refused, [1994] 1 S.C.R. x, 87 C.C.C. (3d) vi. Specifically, disclosure of the relationship between the United States and Canadian authorities in an investigation is not a requirement imposed on the Requesting State under either the Act or the treaty. [20] In my view, the constitutional developments regarding disclosure requirements in a trial cannot apply in the same way to extradition proceedings. In Dynar, although the court did not have to deal with the level of disclosure to which a fugitive is entitled, Cory and Iacobucci JJ. made some comments on the issue. They stated at paras. 128-129: [128] 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 is clear that there is no entitlement to the most favourable procedures imaginable: R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 361-62, 37 C.C.C. (3d) 1, 44 D.L.R. (4th) 193. For example, more attenuated levels of procedural safeguards have been held to be appropriate at immigration hearings than would apply in criminal trials. See Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, 72 C.C.C. (3d) 214, 90 D.L.R. (4th) 289. The same approach is equally applicable to an extradition proceeding. While it was stated in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p. 658, 77 C.C.C. (3d) 65, 97 D.L.R. (4th) 577, that the committal hearing in the extradition process is þclearly judicial in its nature and warrants the application of the full panoply of procedural safeguardsþ, it was held that the extent and nature of procedural protection guaranteed by s. 7 of the Charter in an extradition proceeding will depend on the context in which it is claimed (at pp. 656-57. [129] The context and purpose of the extradition hearing will shape the level of procedural protection that is available to a fugitive. In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 at p. 844, 67 C.C.C. (3d) 1, 84 D.L.R. (4th) 438, the position was put by the majority this way: While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process. It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair. Extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions. [21] In R. v. Sellars (1980), 52 C.C.C. (2d) 345 (S.C.C.), Chouinard J., writing for the full court, stated that where the Supreme Court has ruled on a question of law, although it may be obiter, that rule is binding on the lower courts. Although that statement of the law has been treated as obiter itself, and although that statement of the law has been criticised, that decision has been applied in courts across Canada. See, for example, R. v. Miller (1982), 70 C.C.C. (2d) 129 (Ont.C.A.); R. v. Currie (1983), 4 C.C.C. (3d) 217 (N.S.C.A.D); Cooper v. Miller, [1992] 3 W.W.R. 258 (B.C.C.A.);Reekie v. Messervey (1989), 59 D.L.R. (4th) 481 (B.C.C.A.); Scarff v. Wilson (1988), 55 D.L.R. 55 (C.A.). Even if the words of Iacobucci and Cory JJ. quoted above are dicta, I am therefore bound by them. [22] Bearing those words in mind, I am of the view that the context and limited purpose of the Applicantþs extradition hearing precludes me from ordering the disclosure of evidence relating to the delay that occurred between the date of the Applicantþs 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. [23] Even if I am wrong with respect to my lack of jurisdiction to order disclosure, I am of the view that disclosure should nonetheless be denied because there is not an þair of realityþ to the Applicantþs assertion that the material requested may establish that his Charter rights have been infringed by the actions of the Canadian authorities as contemplated by this court in United States of America v. Cheema et al (June 10, 1999) Vancouver CC980093 (B.C.S.C.). In Cheema, Bennett J. held that the extradition judge may order disclosure of material in the possession of the Canadian authorities if there is an þair of realityþ to the view that such material may establish that the Applicantþs Charter rights were breached by the actions of the Canadian authorities. At paras. 90-91 the learned justice stated: I agree with Maczko J. (in The United Kingdom of Thailand v. Saxena (April 4, 1999) Vancouver Registry (B.C.S.C.)) and Veit J. (in U.S.A. v. Tilley, [1996] A.J. No. 718 (Alta.Q.B.) and U.S.A. v. Tilley,[1996] A.J. No. 263 (Alta.Q.B.)), that the extradition judge has the discretion to order limited disclosure to assist in creating a record for the minister, and may report findings in relation to the alleged breach of Charter rights in such a report. This disclosure should be permitted only in circumstances where a foundation, or þair of realityþ exists to suggest that the Canadian authorities have in fact been involved in misconduct that may amount to a breach of the fugitiveþs Charter rights. The so-called þfishing expeditionsþ should be avoided. The extradition judge cannot lose sight of the fact that extraditions are to be conducted in an expeditious and speedy fashion. [24] Although I am not in complete agreement with Bennett J. on this issue, I am satisfied that, in the application before me, there has been no foundation laid and there has been no þair of realityþ to suggest that the Canadian authorities have been involved in any misconduct that may amount to a breach of the fugitiveþs Charter rights. Conclusion [25] On the basis of the foregoing, I am of the view that I have no jurisdiction to order the disclosure that is requested by the Applicant fugitive. Even if I have such jurisdiction, after perusing the details of the reason for delay in this case, I am not satisfied that there is an air of reality to suggest that the Canadian authorities have been involved in any misconduct that may amount to a breach of the Applicantþs Charter rights. [26] The application is therefore dismissed. "S.R. Romilly, J." The Honourable Mr. Justice S.R. Romilly