Cotroni v. Attorney General of Canada, [1976] 1 SCR 219

Supreme Court of Canada

Cotroni v. Attorney General of Canada, [1976] 1 S.C.R. 219

Date: 1974-10-23

Frank Cotroni Appellant;

and

Attorney General of Canada Respondent.

1974: October 7; 1974: October 23.

Présent: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Extradition—Extradition crimes—Conspiracy to import cocaine into the United States—Crime against the laws for the suppression of the traffic in narcotics—Extradition Act, R.S.C. 1970, c. E-21—Criminal Code, R.S.C. 1970, c. C-34, s. 423(1)(d).

The Federal Court of Appeal dismissed applicant’s application for the cancellation of a warrant of committal under the Extradition Act, R.S.C. 1970, c. E-21, following indictment by a Federal grand jury in the United States for violation of ss. 173 and 174 of Title 21, United States Code. This Court granted leave to appeal only on the question as to whether conspiracy to import a narcotic is an extradition crime within the Extradition Act. Appellant argued that this Court’s jurisdiction under s. 31(3) of the Federal Court Act did not permit this Court to limit the grounds upon which an appeal might be argued and was limited to either granting or refusing such appeal. This Court pointed out that s. 31(3) of the Federal Court Act was to the same effect as s. 41(1) of the Supreme Court Act which provides that the Supreme Court has jurisdiction to grant leave to appeal only on the specific question of law set out in its order, and was subject to a similar course. Appellant submitted the argument that the charge of conspiracy to import a narcotic drug was not listed in Schedule I of the Extradition Act, and that even if he had been charged in Canada, he could have been charged only under s. 423(1)(d) of the Criminal Code, R.S.C. 1970, c. C-34.

Held: The appeal should be dismissed.

The Supplementary Convention of 1925, which was added to the Extradition Act was an extradition arrangement; therefore, if the crime of conspiring to import a narcotic is a crime “against the laws for the suppression of the traffic in narcotics”, it is a crime

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within the definition of “extradition crimes” described in the Convention. This is the case here. It matters not that had the indictment been laid in Canada, it would have been laid under the Criminal Code or the Narcotic Control Act. The test is what is the essence of the crime charged.

Re Brisbois (1962), 133 C.C.C. 188, referred to.

APPEAL from a judgment of the Federal Court of Appeal[1] dismissing an application for cancellation of a warrant of committal. Appeal dismissed.

Kenneth C. Binks, Q.C., and William J. Simpson, for the appellant.

L.P. Landry, Q.C., for the respondent.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judgment of the Federal Court of Appeal pronounced on January 25, 1974. The appellant applied to this Court for leave to appeal and set out therein several grounds of appeal which he wished to argue before this Court. This Court did not grant leave to appeal on any of those grounds but by its order pronounced on April 29, 1974, did grant leave to appeal upon the following question of law:

Is conspiracy to import a narcotic an extradition crime within the Extradition Act, R.S.C. 1970, c. E-21?

At the opening of the argument of the appeal, counsel for the appellant sought to argue the other grounds set out in his application for leave to appeal and submitted that this Court’s jurisdiction under s. 31(3) of the Federal Court Act, 1970 (Can.), c. 1, did not permit this Court to limit the grounds upon which an appeal might be argued and that this Court’s jurisdiction upon such an application for leave to appeal was limited to either granting or refusing such leave. Section 31 (3) of the Federal Court Act reads:

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An appeal to the Supreme Court lies with leave of that Court from any final or other judgment or determination of the Federal Court of Appeal, whether or not leave to appeal to the Supreme Court has been refused by the Federal Court of Appeal.

The Court pointed out to counsel for the appellant that the Supreme Court Act, R.S.C. 1970, c. S-19, in s. 41(1) provides:

Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court

and that, therefore, the two sections would seem to be exactly to the same effect and that over the course of many decades this Court had exercised the jurisdiction in s. 41(1) of the Supreme Court Act to grant leave to appeal only on the specific question of law set out in its order. We were all of the opinion that s. 31(3) of the Federal Court Act was subject to a similar course and we therefore confined the appellant to argument upon the ground of appeal for which leave to appeal had been granted and which I have recited above.

The appellant was indicted by a Federal Grand Jury in the United States District in the State of New York on October 9, 1973, and charged that the appellant had conspired with others to import cocaine, a narcotic drug, into the United States contrary to Title 21, United States Code, ss. 173 and 174. The appellant was also indicted with another charge with which this appeal is not concerned.

The appellant submitted the argument that the charge of conspiracy to import a narcotic drug was not listed in Schedule I to the Extradition Act, R.S.C. 1970, c. E-21, although certain other conspiracies were listed in the said Schedule I, and that the offences with which the appellant was charged in the United States courts if charged in Canada could not have been the subject of a charge under

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the provisions of the Narcotic Control Act but only under the provisions of s. 423(1)(d) of the Criminal Code, R.S.C. 1970, c. 34. The said Extradition Act deals with “extradition crimes” and extradition crimes are defined in s. 2 thereof as follows:

“extradition crime” may mean any crime that, if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in Schedule I; and, in the application of this Act to the case of any extradition arrangement, “extradition crime” means any crime described in such arrangement, whether or not it is comprised in that Schedule.

Although the crime of conspiracy to import a narcotic is not, as I have pointed out, in Schedule I of the Extradition Act, in the year 1925 by a Supplementary Convention there was added a classification described in s. 17 thereof as follows: “Crimes and offences against the laws for the suppression of the traffic in narcotics”.

Referring to the definition of extradition crimes which I have cited above, it will be seen that such crimes are defined as including two different classes, firstly, those which were listed in Schedule I and, secondly, those which were described in such an arrangement, i.e., an extradition arrangement. The Supplementary Convention of the year 1925 was an extradition arrangement within that subsection and therefore if the crime of conspiring to import a narcotic is a crime “against the laws for the suppression of the traffic in narcotics” it is a crime within the definition of “extradition crimes” and the Honourable Mr. Justice Lamb had jurisdiction to consider the application for an extradition order made before him.

I am of the opinion that it matters not whether the particular indictment, had it been laid in Canada, would have been laid under the provisions of the Criminal Code or the Narcotic Control Act or in fact any other statute. The test is what is the essence of the crime charged. I am also of the opinion that the essence of the crime charged in the indictment by the United States Grand Jury

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was and only could be for a crime against the laws for the suppression of the traffic in narcotics. I am therefore of the opinion that Mr. Justice Lamb had jurisdiction.

I have been assisted in coming to this conclusion by referring to the judgment of McRuer C.J.H.C. in Re Brisbois[2], where the learned Chief Justice considered on an application for habeas corpus the case of an applicant who had been convicted in the United States on a charge of “wilfully and knowingly conspiring to defraud the United States of its governmental functions to have the lawful function of the United States Customs Service administered free from obstruction, corruption and improper influence, etc., and conspiring to violate the United States Narcotic Laws. (Title 18, Sec. 371 U.S.C.) as charged…” It is the last words “and conspiring to violate the United States Narcotic Laws” with which we are concerned.

The accused had been convicted and was allowed out on bail pending the hearing of his appeal but he did not surrender to his bail and after an abortive attempt to obtain his extradition from the Bahamas the applicant was arrested in Canada and held for examination. The learned Chief Justice of the High Court considered the issue in a very carefully reasoned judgment, dealt with all the matters which were alleged in our Court and said at p. 193:

In my view the criminal law of Canada has to be examined as a whole to find what laws are designed for the suppression of the traffic in narcotics. Since a conspiracy to commit breaches of the Opium and Narcotic Drug Act is not exempt from the provisions of s. 408, nor was it exempt from the provisions of the former s. 573, a conspiracy to commit any of the indictable offences set out in the Opium and Narcotic Drug Act must be taken to be included in the laws for the suppression of the traffic in narcotics.

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The learned Chief Justice of the High Court concluded that the applicant had been convicted of an offence which came within the terms of the Treaty existing between Canada and the United States of America and dismissed the application for habeas corpus.

I would therefore dismiss the appeal and affirm the judgment of the Federal Court of Appeal.

Appeal dismissed.

Solicitors for the appellant: Binks, Chilcott & Simpson, Ottawa.

Solicitor for the respondent: L.P. Landry, Montreal.