Commonwealth of Puerto Rico v. Hernandez, [1975] 1 SCR 228

Supreme Court of Canada

Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228

Date: 1973-10-29

Commonwealth of Puerto Rico Appellant;

and

Humberto Pagan Hernandez Respondent.

1973: May 22, 23; 1973: October 29.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Extradition—Judicial review by Federal Court—Extradition judge, persona designata—“Federal board, commission or other tribunal”—“Decision or order”—Standing of demanding State to seek review of refusal of extradition—Federal Court Act, R.S.C. 1970, c. 10—Extradition Act, R.S.C. 1970, c. E-21, ss. 18, 23—Interpretation Act, R.S.C. 1970, c. I-23, s. 11.

On an information sworn by an R.C.M.P. officer, that the respondent had, while on bail on a charge of murder, left the jurisdiction of Puerto Rico and was in Canada, a warrant was issued for his apprehension. After an extradition hearing the judge discharged the respondent holding that there was no probable cause to believe him guilty of the crime charged, with the added finding that the offence was not of a political character. Application was made to the Federal Court under s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 for a review of the order of the extradition judge. This application was dismissed for want of jurisdiction on the view that the matter was determined by a decision of this Court on its own jurisdiction.

Held (Abbott, Judson, Spence and Laskin JJ., dissenting): The appeal should be allowed.

Per Fauteux C.J., Martland, Ritchie, Pigeon and Dickson JJ.: A decision on the construction of the Supreme Court Act is not determinative of the construction of the Federal Court Act. The two statutes are not similarly framed and worded and s. 28 of the Federal Court Act contemplates a general right of review of the decisions of a “federal board, commission or other tribunal”. This right of review is applicable to “a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi judicial basis”.

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The scope of the new remedy given by the Federal Court Act must be ascertained by consideration of the language of the act which established a new jurisdiction in federal matters while continuing the jurisdiction formerly exercised by the Exchequer Court of Canada. The Federal Court is a “superior court” in the sense of a court having supervisory jurisdiction. This is not limited to civil matters.

An extradition judge should not be considered as excluded from the definition of “federal board, commission or other tribunal”. The Federal Court Act is a self contained code. When the powers of an extradition commissioner are exercised by a county court judge he is not acting as a judge appointed under s. 96 of the B.N.A. Act, but as a persona designata deriving his authority from a special act of Parliament. This is especially clear since the same powers may be exercised by commissioners who are not judges.

The refusal to commit by the learned Judge was a “decision or order”; those words in s. 28(1) of the Federal Court Act have to be given their plain ordinary meaning and s. 18(2) of the Extradition Act provides that “…the judge shall order him to be discharged”.

The demanding state is a “party directly affected by the decision or order” within the meaning of s. 28(2) of the Federal Court Act.

Section 11 of the Interpretation Act is especially applicable to an enactment establishing a new jurisdiction and a new remedy.

Per Abbott, Judson and Laskin JJ., dissenting: Prior to the passing of the Federal Court Act, 1970, (Can.), c. 1, there was no appeal from or any other review of the discharge of a person in extradition proceedings. Where an order of committal for extradition was made against a person, his only remedy was habeas corpus. There is support for the rejection of the submission that this long standing position has been abruptly reversed by general words in s. 28(1) in the scheme of the Federal Court Act. Undifferentiated references to federal boards, commissions or other tribunals ought not to be read as capturing extradition matters when such matters are not expressly mentioned.

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Per Spence J., dissenting: The position taken by the respondent that the foreign state has no status to appear on an application for review, if such review were possible, is soundly taken.

[United States of America v. W.H. Link and H.H. Green, [1955] S.C.R. 183; Government of the Democratic Republic of the Congo v. Venne, [1971] S.C.R. 997 distinguished; Three Rivers Boatman Ltd. v. Conseil Canadien des Relations ouvrières, [1969] S.C.R. 607; Valin v. Langlois, (1879), 3 S.C.R. 1; Re MacDonald, [1930] 1 W.W.R. 242, [1930] 2 D.L.R. 177; Re Storgoff, [1945] S.C.R. 526; Re State of Wisconsin and Armstrong, [1972] F.C. 1228; Sedore v. Commissioners of Penitentiaries, [1972] F.C. 898; Lingley v. Hickman, [1972] F.C. 171; Re Frank David Ellis, [1972] F.C. 1212; Pringle v. Fraser, [1972] S.C.R. 821; Kipp v. Attorney General of Ontario, [1965] S.C.R. 57; Re Brown, [1946] S.C.R. 536; Gaynor and Green v. United States of America, (1905), 36 S.C.R. 247; C.P.R. v. Little Seminary of Ste-Thérèse, (1889), 16 S.C.R. 606; Godson v. The City of Toronto, (1890), 18 S.C.R. 36; St. Hilaire v. Lambert, (1909), 42 S.C.R. 264; Canadian Northern Ontario Railway v. Smith, (1914), 50 S.C.R. 476; Plante v. Forest, (1936), 61 Que. K.B. 8; Heinz v. Swartz, [1938] 1 D.L.R. 29; R. v. Keepers of the Peace and Justices of County of London, (1890), 25 Q.B., 357; Scullion v. Canadian Breweries Transport Ltd., [1956] S.C.R. 512; R. v. Hemlock Park Cooperative Farm Ltd., [1974] S.C.R. 123 referred to].

APPEAL from a judgment of the Federal Court of Appeal[1], holding that that Court had no jurisdiction. Appeal allowed, Abbott, Judson, Spence and Laskin JJ. dissenting.

Gordon P. Killeen, Q.C., and Gerald R. Morin, for the appellant.

Clayton C. Ruby, for the respondent.

The judgment of the Chief Justice and Martland, Ritchie, Pigeon and Dickson JJ. was delivered by

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PIGEON J.—Under date October 22, 1971, an officer of the Royal Canadian Mounted Police swore an information stating that the respondent had committed a murder in the Commonwealth of Puerto Rico, one of the territories of the United States of America, that he had been arrested, charged and released on bail, that he had fled the jurisdiction and that he was presently in Canada. It was added that the United States of America would make a request to the Government of Canada for the extradition of the fugitive. A warrant of apprehension was issued by Judge Honeywell, a county court judge acting under The Extradition Act. After a hearing, the same judge discharged the respondent, holding that there was not probable cause to believe he was guilty of the crime charged. In his written reasons he added a finding “that the offence of murder in this case was not an offence of a political character”.

Subsequently, an application was made to the Federal Court of Appeal under s. 28 of the Federal Court Act by counsel for the Commonwealth of Puerto Rico who had been acting at the hearing under The Extradition Act. On August 2, 1972, the Federal Court of Appeal dismissed this application holding that it had no jurisdiction. This is the judgment under appeal by special leave of this Court.

The reasons for judgment in the Court below rest exclusively on the view that “the matter is determined by the decision of this Court in The United States of America v. W.H. Link and H.H. Green[2]. In that case, an application for special leave to appeal under s. 41 of the Supreme Court Act was dismissed from the bench, the Chief Justice stating:

…that the Members of the Court were unanimously of the opinion that there was no jurisdiction, as the refusal of Chief Justice Scott was not a judgment, as defined by s. 2(d) within the meaning of s. 41 of the Supreme Court Act.

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With respect, I fail to see on what basis a decision on the construction of the Supreme Court Act could be determinative of the construction of the Federal Court Act. The two statutes are not similarly framed and worded. The Supreme Court Act has always been concerned only with appeals from courts, although appeals from some boards were exceptionally provided for under the special statute governing each of those boards. On the contrary, s. 28 of the Federal Court Act contemplates a general right of review of the decisions of a “federal board, commission or other tribunal”, a classification excluding courts (s. 2). This right of review is applicable to “a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis”.

The proper scope of the new remedy must therefore be ascertained by a consideration of the language used by Parliament in the context of a statute enacted in 1970 which established a new jurisdiction in federal matters, while continuing the jurisdiction formerly exercised by the Exchequer Court of Canada. Prior to that time, it is clear that supervisory jurisdiction over federal boards was, as a rule, vested in the superior courts of the provinces (Three Rivers Boatman Ltd. v. Conseil canadien des Relations ouvrières[3]).

I do not suggest that the concluding words of s. 3 of the Federal Court Act: “shall continue to be a superior court of record having civil and criminal jurisdiction” are to be read as making, in federal matters, the Federal Court a “superior court” within the same meaning of that expression as applied to the superior courts of the provinces, that is courts having jurisdiction in all cases not excluded from their authority or, as Ritchie C J. put it in Valin v. Langlois[4] at p. 19, “Courts, bound to take cognizance of and execute all laws…”. The Exchequer Court was not a “superior court” in that sense. Section 3

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of the Exchequer Court Act, c. 98, described it as a “court of record” only. Its inclusion in the definition of “superior court” in the Judges Act, R.S.C. c. 159, s. 2 would certainly have no effect on its jurisdiction. The word “continue” in s. 3 negates any intention to turn it, under its new constitution, into a court of general jurisdiction in all federal matters. The provisions of s. 26(1) of the Federal Court Act also imply that the Federal Court has jurisdiction only where provided by the Act or by another federal act, whether referring to the Court “by its new name or its former name”. In view of all this, it appears to me that the Federal Court is a “superior court” in the sense of a court having supervisory jurisdiction. This is a meaning often used, as appears from the numerous authorities reviewed in Re Macdonald[5] and it is significant that such jurisdiction is conferred by the Act.

Provisions dealing with jurisdiction are found under two headings: “JURISDICTION OF TRIAL DIVISION” and “JURISDICTION OF FEDERAL COURT OF APPEAL”. Under the first heading, s. 18 confers to the Trial Division of the Federal Court supervisory jurisdiction over “any federal board, commission or other tribunal”. The language used is clearly intended to transfer this jurisdiction entirely from the superior courts of the provinces to the Federal Court. Paragraph (a) mentions declaratory relief in addition to four prerogative writs, and paragraph (b) covers “any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada…”

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However, under the second heading, s. 28 in effect provides that the supervisory jurisdiction of the Federal Court is generally to be exercised, not by the Trial Division through the modes of relief heretofore available, but by means of a new remedy that is newly created and defined. This new remedy is an application to the Court of Appeal to “review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis”, when the federal board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

I see no reason for reading those provisions as applicable only in civil matters. They are framed in the most general terms and they apply to a “superior court of record having civil and criminal jurisdiction” (s. 3). Of course, criminal jurisdiction is generally exercised by courts, not by “boards, commissions or other tribunals” and, therefore, relief must still be sought in most cases before superior courts of criminal jurisdiction in accordance with the principles laid down in Re Storgoff[6]. However, when the decision to be reviewed in criminal matters was made, not by a court but by a “federal board, commission or other tribunal”, then, it seems to me, the clear meaning is that the jurisdiction shall be exercised by the Federal Court, not by the other superior courts. In fact, the Federal Court has exercised jurisdiction in criminal matters, not only under s. 28 in the matter of the request for extradition of Karleton Lewis

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Armstrong[7], but also under s. 18 in Sedore v. Commissioner of Penitentiaries[8], Lingley v. Hickman[9] and In re Frank David Ellis[10], citing only reported cases that have come to my attention.

The writs of certiorari, prohibition and mandamus mentioned in s. 18 of the Federal Court Act have always been available in civil and criminal matters without distinction. They are enumerated with habeas corpus under the heading “Extraordinary Remedies” in s. 708 of the Criminal Code which is in the following terms:

708. This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus and prohibition.

This wording restricting the application of Part XXIII to “proceedings in criminal matters” is to be contrasted with s. 18 of the Federal Court Act which provides that “The Trial Division has exclusive original jurisdiction (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal;…” The scope of this enactment is limited by reference to the persons or bodies amenable to it, not as in the Criminal Code by reference to the nature of the proceedings before them. To the extent that those matters are criminal, this involves a transfer to the Federal Court of the jurisdiction of the superior courts of criminal jurisdiction as against federal boards, commissions or other tribunals. In civil matters, the effect of the provision is also to take away the jurisdiction of the superior courts of the Provinces (Pringle v. Fraser[11]).

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I cannot agree that prior to the enactment of the Federal Court Act there was no possible form of review of the discharge of a person in extradition proceedings. There does not appear to be any reported case in which such review was sought but, on principle, I fail to see why a mandamus would not have been available in a situation similar to that in which this remedy was held available against the judge who had erroneously quashed the indictment in Kipp v. Attorney General for Ontario[12]. I am not suggesting that this is a similar case, but Parliament did not only transfer to the Trial Division of the Federal Court all available remedies against federal boards, commissions and other tribunals, it also created an extended remedy by way of a general right of review to be exercised by the Federal Court of Appeal in broadly defined cases.

It does not appear to me that an extradition commissioner or judge sitting under the Extradition Act should be considered as excluded from the definition of “federal board, commission or other tribunal” because the Act is a self contained code. Supervisory jurisdiction is a common law remedy which can only be excluded by explicit enactment. It is unnecessary to review the cases dealing with privative clauses which have always held them ineffective as against jurisdictional defects. I fail to see how this Act could be considered different in that respect from the other acts governing other federal agencies coming within the definition.

I also fail to see why the fact that habeas corpus is not mentioned in the Exchequer Court Act and therefore remains within the jurisdiction of superior courts of criminal jurisdiction, would make the new remedy unavailable to the person sought to be extradited. As Rinfret C.J.

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said In re Brown[13], “habeas corpus is not available to review the judgment…” It always was subject to special rules. It remains quite independent of the remedy by certiorari although the two may sometimes be joined, but not when there exists a right of appeal excluding certiorari.

It is quite true that the superior courts never had the jurisdiction contemplated in s. 28 of the Federal Court Act, but this is a new remedy. While, to a certain extent, it is a substitute for previously existing remedies before other courts, it is obviously much broader in scope. I can see no reason for restricting the language used because this alters a situation that has remained unchanged for a long period of time. In Gaynor and Green v. U.S.A.[14] Sedgewick J. said (at p. 249):

…It would appear from the perusal of the criminal law of Canada and of cognate legislation that the whole policy of Parliament has been to prevent prolonged litigation particularly in matters of a criminal nature.

Clearly, this cannot be said of present day legislative policy. There is no necessity to review all the enactments that have enlarged and extended the right of appeal in criminal cases including the right of appeal by the Crown and retrials contrary to the common law rule. For centuries, when a man was discharged on habeas corpus, this was final. There is now a right of appeal under s. 719.5 of the Criminal Code enacted in 1965 (13-14 El. II ch. 53 s. 1).

It seems clear that an extradition commissioner is a “federal board, commission or other tribunal” because he is a person exercising jurisdiction or powers “under an Act of the Parliament of Canada” and is not “appointed under or in accordance with the law of a province or under s. 96 of the British North America

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Act 1867”. However, the judge who acted on the information in this case is a county court judge, which means that he was appointed under s. 96 of the B.N.A. Act. Does this mean that he is excluded from the definition? In my view, the exclusion applies to such appointees when they are acting as such, that is when exercising the jurisdiction of a county court judge. This is not the case under the Extradition Act. When the powers of an extradition commissioner are exercised by a county court judge, he is acting as persona designata, that is a person deriving his authority, not from his appointment, but from a special act of Parliament.

The criteria defining the situation of a judge acting as persona designata were considered in numerous cases including C.P.R. v. Little Seminary of Ste. Thérèse[15]; Gordon v. The City of Toronto[16]; St. Hilaire v. Lambert[17]; Canadian Northern Ontario Railway v. Smith[18]; Plante v. Forest[19]; Heinz v. Swartz[20]. It is a well established distinction and under the Extradition Act it is especially clear that a judge acts as persona designata because the same powers may be exercised by commissioners who are not judges.

Respondent contended that the appellant was not a “party directly affected by the decision or order” relying on the following words of Lord Coleridge C.H. in R. v. Justices of the County of London[21] at p. 361:

…Is a person who cannot succeed in getting a conviction against another a person “aggrieved”? He may be annoyed at finding that what he thought was a breach of law is not a breach of law; but is he “aggrieved” because some one is held not to have done wrong?…

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I would point out that s. 749 of the old Criminal Code read:

749. Unless it is otherwise provided in any Act under which a conviction takes place or an order is made by a justice for the payment of money or dismissing an information or complaint, any person who thinks himself aggrieved by any such conviction or order or dismissal, the prosecutor or complainant, as well as the defendant, may appeal.

There was a similar wording in s. 761 concerning appeals by way of stated case and in Scullion v. Canadian Breweries Transport Ltd.[22], this Court held that the further right of appeal to the Court of Appeal against any decision given by s. 769A (enacted by 1948 ch. 39 s. 34) availed to the complainant. Subsection (1) of s. 769A was as follows:

769A. (1) An appeal to the Court of Appeal, as defined in section one thousand and twelve, against any decision of the court under the provisions of section seven hundred and fifty-two or section seven hundred and sixty-five with leave of the Court of Appeal or a judge thereof may be taken on any ground which involves a question of law alone.

After quoting it, Kellock J. said:

As the right of appeal thus given is against any decision made under s. 752 or s. 765, such right is plainly conferred upon the person who was unsuccessful below, whether he was a person convicted or the complainant.

In the present case, the result of the decision reached under the Extradition Act was to make it impossible for the Commonwealth of Puerto Rico to make, through the United States of America, a demand for the surrender of the respondent so that he could be tried in accordance with the laws of the State. Throughout the proceedings counsel for the State has enjoyed the status of counsel for a party in accordance with established practice and I can see no

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reason for which a foreign state would not have status for instituting proceedings under s. 28 of the Federal Court Act as well as under any other law. Foreign states may not as a rule be summoned before our courts against their will (La République démocratique du Congo v. Venne[23]), but nothing prevents them from appearing as parties before our courts if they so desire. I can see no basis for the application in such cases of the rule that criminal prosecutions are instituted in the name of the Crown. This rule applies to prosecutions for crimes against our laws. In respect of crimes committed abroad, the proper prosecuting authority is the authority of the state in which the crime was committed. Of course, the Attorney-general of Canada could act in the present case by virtue of the express terms of s. 28(2) of the Federal Court Act, but this certainly does not exclude the right of each party to make the application.

it was strenuously contended that the refusal to commit the respondent was not a decision or order. In this respect, it should be noted that the learned judge acted under a provision of the Extradition Act reading as follows:

18. (2) If such evidence is not produced, the judge shall order him to be discharged. (Emphasis added).

No reason was advanced for reading the words “decision or order” in s. 28(1) of the Federal Court Act otherwise than in their plain ordinary meaning. As previously pointed out, decisions of this Court in the interpretation of the Supreme Court Act are of no assistance in that respect. In my view, the rule of s. 11 of the Interpretation Act is especially applicable to an enactment establishing a new jurisdiction and a new remedy.

11. Every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

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I would allow the appeal and return the case to the Federal Court of Appeal for hearing on the merits.

The judgment of Abbott, Judson and Laskin J.J. was delivered by

LASKIN J. (dissenting)—It is common ground in this appeal that prior to the passing of the Federal Court Act, 1970 (Can.), c. 1, effective June 1, 1971, there was no appeal from, or any other form of review of the discharge of a person in extradition proceedings; he was only at the risk of a renewal of such proceedings. Again, where an order of committal for extradition was made against a person, his only remedy was habeas corpus. This has been the law in Canada for over one hundred years, from the first enactment of an extradition statute by 1868 (Can.), c. 94, governing extradition between Canada and the United States, and for the ninety-five year period since the enactment of the first general extradition statute by 1877 (Can.), c. 25. What falls to be decided here, leave to appeal having been given, is whether the law has been changed by s. 28(1) of the Federal Court Act, at least where the extradition judge has refused to direct that the subject of the proceedings be held for extradition and has discharged him.

Section 28(1) reads as follows:

Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

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(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Section 2(g) of the Federal Court Act defines “federal board, commission or other tribunal” in these terms:

“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of The British North America Act, 1867.

In the present case, the respondent was the subject of a request by the Commonwealth of Puerto Rico for extradition on a charge of murder. Puerto Rico was entitled to make that request to the Minister of Justice under the extradition treaty in force between Canada and the United States. An information was sworn against the respondent by a member of the Royal Canadian Mounted Police, and a hearing was held before Judge Honeywell pursuant to the Extradition Act, R.S.C. 1970, c. E-21. That judge found the evidence insufficient to warrant holding the respondent for extradition and he discharged him. On an application by Puerto Rico for review under s. 28(1), the Federal Court of Appeal held unanimously[24] relying on a judgment of this Court in U.S.A. v. Link and Green[25], that there was no “decision or order” involved in the discharge within the meaning of those words in s. 28(1), and it declined jurisdiction. The Federal Court of Appeal held in a subsequent case, Re State of Wisconsin and

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Armstrong[26], where committal for extradition was directed, that it did have jurisdiction to entertain an application for review at the suit of the detainee, and it subsequently dismissed his application on the merits in a judgment delivered on January 5, 1973. This Court refused leave to appeal on March 5, 1973, but, of course, no interference can be drawn that the refusal implied approval of the taking of jurisdiction by the Federal Court of Appeal.

I do not think that U.S.A. v. Link and Green, supra was determinative for the Federal Court of Appeal of the issue of its jurisdiction. It was concerned with the jurisdiction of this Court under s. 41 of the Supreme Court Act, R.S.C. 1952, c. 259 to grant leave to appeal, and the fact that it arose out of an extradition matter was, in my view, merely a factor for the Court to consider. Whether U.S.A. v. Link and Green depended, as counsel for the appellant urged, on the fact that what was sought to be appealed was not a “judgment of the highest court of final resort in the Province… in which judgment can be had in the particular case”, or whether it depended, as counsel for the respondent urged, on the definition of “judgment” in s. 2(d) of the Supreme Court Act, in either case I see nothing that bound the Federal Court of Appeal in respect of the application of s. 28(1) of its constituent Act. I am, however, of the opinion that a reason going beyond any definition of terms supports the conclusion of the Federal Court of Appeal in the present case and, further, that Re State of Wisconsin and Armstrong, supra was wrongly decided by that Court on the point of jurisdiction.

I take the holding of this Court in Gaynor and Green v. U.S.A.[27] to be that extradition proceedings are proceedings of a criminal character,

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arising as they do out of a criminal charge, and hence no appeal lay, under the relevant appeal provisions then in force, from the affirmation of a refusal of prohibition to an extradition commissioner. This characterization of extradition proceedings is quite plain under the terms of the Extradition Act which then, as now, preserved the right to habeas corpus of a fugitive who had been committed for surrender. Section 23 of the present Extradition Act is almost word for word with s. 17 of the original Act of 1877 and reads as follows:

A fugitive shall not be surrendered until after the expiration of fifteen days from the date of his committal for surrender, or, if a writ of habeas corpus is issued, until after the decision of the court remanding him.

Extradition proceedings involve an intimate relation between the executive and extradition judges arising out of a treaty with a foreign country which commits the executive to provide an opportunity to the foreign state to seek the return of a fugitive to answer there a charge of a crime covered by the treaty or the return of a fugitive convicted there of an extradition crime. If a fugitive is committed for extradition the Minister of Justice must be so notified by the extradition judge (see s. 19 of the Act) and it is nessary for the foreign state to make a requisition to the Minister of Justice for the surrender of the fugitive. It is for the Minister to determine if there should be a surrender, and I doubt whether mandamus would lie to compel him to that act, even in a situation not falling within ss. 21 and 22 of the Extradition Act, which forbids surrender in the case of a crime of a political character, or entitles the Minister on that ground to refuse it upon his determination either that the offence is of that character or that is what lies behind the proceedings. Indeed, the Minister, acting under s. 22, may discharge the fugitive from custody.

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I have referred to the scheme of the Act (and it is the same scheme that we have had for some one hundred years) in order to emphasize the special character of extradition proceedings and the concern shown for the liberty of persons in Canada as against foreign claims for their surrender, supported by provisions for habeas corpus in favour of the fugitive and without rights of appeal or review otherwise. This policy, if I may so call it, was the subject of comment in Gaynor and Green v. U.S.A. supra where reference was made to the present s. 40 of the Supreme Court Act, R.S.C. 1970, c. S-19 which excludes any appeal to this Court under ss. 36, 38 or 39 in respect of, inter alia, judgments in a criminal cause or proceedings arising out of habeas corpus in an extradition matter.

I cannot accept the submission of the appellant that the policy to which I have referred has been abruptly reversed by general words in s. 28(1) when such words have ample subject matter without construing them to embrace extradition proceedings. There is support for this opinion in the scheme of the Federal Court Act and, particularly in the specification of jurisdiction of the Trial Division and of the Federal Court of Appeal, and in the interaction of the jurisdiction of each under ss. 18 and 28(1) to review decisions of a “federal board, commission or other tribunal”.

None of the specified classes of jurisdiction reposed in the Trial Division under the Federal Court Act deal with jurisdiction in criminal matters. True enough, the Federal Court (consisting of two divisions, trial and appeal) is, by s. 3, declared to be a continuation of the Exchequer Court of Canada and to continue to be a supe-

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rior court of record having civil and criminal jurisdiction. This, however, represents merely a capacity to exercise criminal jurisdiction when conferred. The Exchequer Court of Canada originated as a statutory court respecting claims by or against the Crown in right of Canada (see 1875 (Can.), c. 38, and 1887 (Can.), c. 16) with no general common law jurisdiction and no criminal jurisdiction. It first acquired criminal jurisdiction in 1960 under amendments to the Combines Investigation Act, R.S.C. 1952, c. 314, made by 1960 (Can.), c. 45, ss. 17 and 19. The conferring of the particular criminal jurisdiction was accompanied by a provision (which became s. 46(1) of R.S.C. 1970, c. C-23) that “for the purposes of such prosecution or other proceedings the Exchequer Court of Canada has all the powers and jurisdiction of a superior court of criminal jurisdiction under the Criminal Code and under this Act”. I refer to the judgment of this Court in The Queen v. Hemlock Park Co-Operative Farm Ltd.[28], where there is a discussion by Pigeon J. of certain aspects of this new jurisdiction.

The foregoing provision in the 1960 amendments to the Combines Investigation Act appears to be the source of the reference in s. 3 of the Federal Court Act that the Federal Court shall continue to be a superior court of record having civil and criminal jurisdiction. It has, indeed, a very limited character as a court of criminal jurisdiction. The jurisdiction originally reposed in the Exchequer Court, as carried into s. 46 of the Combines Investigation Act, R.S.C. 1970, c. C-23, was transferred to the Trial Division of the Federal Court by R.S.C. 1970 (2nd Supp.), c. 10, s. 65, item 9, and there was added a provision for an appeal to the Federal Court of Appeal, with a further appeal to this Court. I know of no other jurisdiction of a criminal

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character that has been reposed in the Federal Court in either of its divisions. Accordingly, I would find it strange that jurisdiction in extradition matters can be comprehended, by a sidewind so to speak, within s. 28(1).

If there is such jurisdiction that has been conferred in such an exceptional manner, I cannot see any basis for the distinction that the Federal Court of Appeal has made between review where there has been a committal and no review where there has been a discharge. If the whole matter is not there, I would find it difficult to accept a situation where the half that is there is in respect of a person who has been committed for extradition. He is already protected by a right to resort to habeas corpus under s. 23 of the Extradition Act; and if it cannot be said (as I think it cannot) that this right is implicitly displaced by s. 28(1) of the Federal Court Act I see no merit in a view that seeks to provide a somewhat parallel remedy by invocation of very general words while denying any remedy at all under the same words where there has been a discharge.

Section 27 of the Federal Court Act confers a straight right of appeal to the Federal Court of Appeal from final and interlocutory judgments of the Trial Division. Applications for review under s. 28(1), having regard to the wide grounds of review do not differ materially from appeals; but the scope of review distinguishes the jurisdiction of the Federal Court of Appeal over decisions of judicial or quasi-judicial federal boards, commissions or other tribunals from the prerogative writ jurisdiction conferred upon the Trial Division by s. 18. There is, even apart from the difference in scope of review, the displacing phrase with which s. 28(1) begins, namely, “Notwithstanding section 18 or the provisions of any other Act”, and the displacement of the Trial Division is emphasized by s.

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28(3). I do not read s. 18 as conferring jurisdiction upon the Trial Division to interfere by any of the prerogative writs with decisions in criminal matters; it is aimed at federal administrative agencies, although without limitation to agencies of a judicial or quasi-judicial nature. Similarly, having regard to the interaction of ss. 18 and 28(1), I do not view s. 28(1) as involving review of decisions or orders in criminal matters.

Although issue was taken by counsel for the respondent with the right of Puerto Rico to apply for review, the contention being that it was not a “party directly affected” within s. 28(3), I do not think that a ruling in favour of Puerto Rico’s standing to invoke s. 28(1) carries the appellant over the main hurdle to which I have alluded. Similarly with a holding that an extradition judge comes within the definition of a “federal board, commission or other tribunal”. It is one thing to do what ss. 18 and 28(1) have done, that is to transfer out of the provincial superior courts the jurisdiction that they theretofore had to review decisions of federal administrative agencies. It is quite another thing to read the transferring words, merely because of their generality, as endowing the Federal Court of Appeal with a jurisdiction that the provincial superior courts never had.

The Extradition Act has been since its enactment a self-contained code. There is no common law of extradition as there is a common law of judicial review of the decisions of administrative agencies. Hence, undifferentiated references, as in ss. 18 and 28(1), to federal boards, commissions or other tribunals ought not to be read as capturing extradition

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matters when there is no express mention thereof in the definition of such agencies.

For the foregoing reasons I am of the opinion that the Federal Court of Appeal is without jurisdiction to entertain an application to review either the discharge or the committal of a person in extradition proceedings taken against him. I would, accordingly, dismiss the appeal.

SPENCE J. (dissenting)—I have had the opportunity to read the reasons for judgment of my brother Laskin and I agree with him that the appeal should be dismissed for the reasons which he has given. However, I do not wish to be understood to be of the opinion that the decision of this Court in Gaynor and Green v. U.S.A.[29] was not, at any rate, a very persuasive authority to the Federal Court of Appeal that a refusal of a commissioner under the Extradition Act to hold an accused for extradition was not a matter subject to review under the provisions of 28(1) of the Federal Court Act. On the other hand, I am of the opinion that the decision of this court in the Gaynor and Green case might well be sound authority for the view that such a refusal was no more a decision under the provisions of the Federal Court Act than it was a judgment under the provisions of s. 41 of the Supreme Court Act.

I am also of the view that the position taken by the respondent in the present case in this Court that the foreign state has no status to appear on an application for review, if such review were possible, is soundly taken and that the applicant for such review should have been either the informant or more probably the Attorney General for Canada. It is unnecessary in the present case to base the decision of this Court on that point and I merely mention it at the present time.

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Appeal allowed, ABBOTT, JUDSON, SPENCE and LASKIN, JJ. dissenting.

Solicitors for the appellant: Soloway, Wright, Houston, Killeen & Greenberg, Ottawa.

Solicitor for the respondent: Clayton C. Ruby, Toronto.