R. v. Parisien, [1988] 1 SCR 950

Supreme Court of Canada

R. v. Parisien, [1988] 1 S.C.R. 950

Date: 1988-05-26

Yves Parisien Appellant

v.

Her Majesty The Queen Respondent

INDEXED AS: R. V. PARISIEN

File No.: 19131.

1987: October 8; 1988: May 26.

Present: Dickson C.J. and Beetz, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Extradition — International law — Rule of Specialty — Extradition arrangement with a foreign state — Prosecution for crimes listed in extradition request — Immunity for crimes committed before surrender — Reasonable opportunity to return to the requested state — Whether immunity from prosecution perpetual — Extradition Act, R.S.C. 1970, c. E-21, s. 33.

Appellant, a Canadian citizen, was arrested in Brazil after a warrant for arrest on a charge of fraud had been laid against him in Canada. There was no extradition treaty between Canada and Brazil, but an arrangement was entered into by the two countries which provided in particular that no surrender should take place unless the requesting state agreed that the person surrendered would not be imprisoned nor tried for other acts which occurred before the extradition request.

Appellant was surrendered to Canada in respect of five counts of fraud and was tried and sentenced. At the expiry of the sentence, Crown counsel notified appellant that further charges for offences committed prior to his extradition would be proceeded with. On appellant's return to Canada from a visit to Portugal, a new information was sworn charging him with thirty-nine offences.

At the preliminary hearing, the Provincial Court Judge dismissed a motion for a stay of proceedings holding that the prosecution was not contrary to Canada's undertaking to Brazil. An application for prohibition and an order to quash the proceedings were dismissed by the Supreme Court of Ontario. Appellant's appeal to the Court of Appeal was dismissed and leave to appeal to this Court was granted.

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At issue is whether a clause in an extradition arrangement with a foreign state, which prohibits Canada, without qualification, from prosecuting a person surrendered to it pursuant to that arrangement for crimes, other than the crimes for which he was surrendered, committed before such surrender forever bars this country from initiating such a prosecution.

Held: The appeal should be dismissed.

Canada's undertaking does not give appellant immunity after he has had a reasonable opportunity to return to Brazil. The arrangement between Canada and Brazil must be read in context and in light of its object and purpose and in light of the general principles of international law. This undertaking was related to the surrender. Brazil had an interest in protecting appellant against the surrender being used for a purpose other than that for which it was made. The undertaking was not breached in this case. Rather appellant chose to remain in Canada following the initial prosecution. To accord him the perpetual immunity he seeks would constitute a significant derogation from Canada's freedom and independence in dealing with its own citizens within its territory, a principle central to the international legal order. The undertaking made to Brazil is related to prosecutions that take place by reason of the surrender of a fugitive to the requesting state, not cases where prosecution becomes possible because the accused decided to stay in the requesting state following such prosecution. Once the accused is no longer here because of the surrender, but rather because he seeks of his own accord to live in Canada and to enjoy the protection of its laws, he owes a duty of allegiance to Canada and is subject to these laws.

Cases Cited

Referred to: United States v. Rauscher, 119 U.S. 407 (1886); In re Dilasser (1952), 19 Int. Law Rep. 377 (Venezuela); R. v. Crux and Polvliet (1971), 2 C.C.C. (2d) 427 (B.C.C.A.); The case of the S.S. "Lotus" (1927), P.C.I.J. Series A, No. 10; Dunbar and Sullivan Dredging Co. v. The Ship "Milwaukee" (1907), 11 Ex. C.R. 179; Novic v. Public Prosecutor of the Canton of Basel-Stadt (1955), 22 Int. Law Rep. 515 (Switzerland); Hungary and Austria (Extradition) Case (1929), 5 Ann. Dig. Pub. Int. Law. 275 (Hungary S.C.)

Statutes and Regulations Cited

Extradition Act, R.S.C. 1970, c. E-21, ss. 30, 33, 40.

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Authors cited

Briggs, Herbert Whittaker. The Law of Nations: cases, documents and notes. Edited by Herbert W. Briggs, 2nd ed. London: Stevens and Sons, 1953.

Feller, S. Z. "Reflections on the Nature of the Speciality Principle in Extradition Relations" (1977), 12 Israel Law Rev. 466.

Hackworth, Green Haywood. Digest of International Law, vol. IV. Washington: United States Government Printing Office, 1942.

Harvard Research. Draft Convention on the Law of Treaties. James W. Garner Reporter, 1935.

Vienna Convention on the Law of Treaties, U.N. Doc. A/Conf. 39/27.

APPEAL from a judgment of the Ontario Court of Appeal, dismissing appellant's appeal from a judgment of the Supreme Court of Ontario, summarized [1983] Ont. D. Crim. Conv. 5475-09, dismissing appellant's application for a writ of prohibition and a certiorari to quash proceedings. Appeal dismissed.

Yves Parisien, on his own behalf.

Eric Seibenmorgen, for the respondent.

The judgment of the Court was delivered by

LA FOREST J.—At issue in this case is the effect of a clause in an extradition arrangement with a foreign state, which prohibits Canada, without qualification, from prosecuting a person surrendered to it pursuant to that arrangement for crimes, other than those for which he was surrendered, committed before such surrender. Specifically, does such a clause forever bar this country from initiating such a prosecution?

Facts

The appellant, a Canadian citizen, was arrested in Brazil on August 18, 1978 at the request of the Canadian government after a warrant for arrest on a charge of fraud had been laid against him in Canada. This was only one of many complaints about his alleged fraudulent activities. On August 29, 1978, four other charges of fraud were laid.

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There was no extradition treaty between Canada and Brazil but Brazilian law permits extradition in the absence of treaty where the requesting state offers to reciprocate in respect of fugitives from Brazil. Canada agreed to reciprocate and for that purpose proclaimed Part II of the Canadian Extradition Act, R.S.C. 1970, c. E-21, to be in effect with respect to Brazil.

The Brazilian law also provides that no surrender shall take place unless the requesting state agrees that the person surrendered will not be imprisoned nor tried for other acts which occurred before the extradition request. By diplomatic note dated January 15, 1980, Canada agreed to this and a number of other conditions. As a result, the appellant was surrendered to Canada on January 25 of that year pursuant to the arrangement to face prosecution on the five counts of fraud. The conditions agreed to, of which only the first and fourth are relevant, are as follows:

The extraditee shall not be handed over unless the State undertakes the following:

I—that the extraditee will not be arrested or tried for other offenses prior to the request for extradition;

II—to calculate the time spent in prison in Brazil as detention awaiting trial, when this time is normally counted for purposes of sentencing;

III—to commute corporal punishment or the death penalty to a penalty of imprisonment, barring, in the case of the death penalty, those instances where Brazilian law permits its application;

IV—that the extraditee will not be handed over to any other State requesting him without the consent of Brazil;

V—that political reasons or motives will not be used to increase the sentence. [Emphasis added.]

Immediately upon the appellant's return to Canada, he was charged with an additional forty-four offences, based on acts committed prior to his extradition. At a preliminary hearing in May, 1980, however, the Crown withdrew the additional charges. The appellant then pleaded guilty to the original five counts and was sentenced to eighteen

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months imprisonment. He was released on parole on January 26, 1981, and his sentence expired December 29, 1981.

At the preliminary hearing, Crown counsel notified the appellant that with Brazil's consent before the expiration of his sentence, or without Brazil's consent afterwards, the Crown would proceed with the further charges. Canada negotiated with Brazil to obtain its consent, but Brazil refused unless the appellant consented as well. As could be expected, the appellant's consent was not forthcoming.

On April 14, 1982, the appellant left Canada to visit Portugal and returned of his own free will within a month. On May 26, 1982, a new information was sworn charging him with thirty-nine offences, all of which were included in the forty-four charges laid upon the appellant's return to Canada from Brazil. These thirty-nine charges are the basis of these proceedings. On October 19, 1982, two other charges were laid which are not part of these proceedings but will likely be affected by the outcome.

The Courts Below

On February 8, 1983, a preliminary hearing into the thirty-nine charges commenced before Judge S. Harris of the Provincial Court (Criminal Division) for the Judicial District of Ottawa-Carleton, at which time counsel for the appellant moved for a stay of proceedings upon all of the charges. Proceedings in violation of Canada's undertaking would, it was argued, bring the administration of justice into disrepute. The motion was dismissed on May 5, 1983. While Harris Prov. Ct. J. believed he had the power to order a stay and that a stay should issue if the prosecution was contrary to Canada's undertaking to Brazil, he concluded that the prosecution did not breach the undertaking. He examined the Rule of Specialty, an alleged principle of international law relating to extradition, under which a fugitive may only be prosecuted for the offences for which extradition was

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granted unless the states concerned have a special agreement to the contrary or the fugitive consents to prosecution. Harris Prov. Ct. J. was of the view that there was such a principle but that it was qualified in that it only applied until the fugitive had been given a reasonable opportunity to return to the country that surrendered him. In his view, s. 33 of the Extradition Act incorporated both the principle and the qualification. He further held that the appellant had been given a reasonable opportunity to return to Brazil. In his view, s. 33 applies to any extradition. The qualification of a reasonable time limit in that provision applies to all extraditions unless an agreement specifically provides otherwise. Since the agreement with Brazil was silent on the point, s. 33 permits the prosecution to take place. To hold otherwise, he stated, would be to give the appellant a perpetual blanket immunity from prosecution which would itself bring the administration of justice into disrepute.

An application for prohibition and an order to quash the proceedings was then made before Southey J. of the Supreme Court of Ontario — Ottawa Motions Court. This application was dismissed: [1983] Ont. D. Crim. Conv. 5475-09 Southey J. noted that the Crown did not dispute that the prosecution should not be permitted if it constituted a breach of Canada's undertaking. However, he did not think the prosecution constituted such a breach. In his view, the undertaking did not provide the appellant with a perpetual immunity. Since the appellant had been given a reasonable opportunity to return to the country from which he was extradited, the undertaking was no longer in effect and the immunity conferred by it had ceased to exist. The undertaking was silent as to duration. It should be construed as an immunity from prosecution that lasted only while the appellant was in Canada pursuant to the extradition and that immunity expired once the appellant was given an opportunity to leave. That interpretation, he added, was consistent with the Rule of Specialty as adopted in s. 33 of the Extradition Act and the weight of the authorities on international law. Since the appellant had had a

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reasonable time and opportunity to leave Canada, the undertaking with Brazil had expired and the prosecution would not constitute a breach of the undertaking.

An appeal to the Court of Appeal of Ontario was dismissed. The Court agreed with the reasons and conclusions of Southey J.

Leave to appeal to this Court was then sought and granted: [1985] 1 S.C.R. xi. The issue raised by the appellant is whether the courts below erred in law "in their appreciation of the Rule of Specialty, its application in Canadian Law and in their interpretation of section 33 of the Extradition Act and in the effect to be given to Canada's undertaking to Brazil in this matter".

Analysis

There is no rule of international law that requires states to surrender fugitives from justice within their jurisdiction to countries where they have been accused or convicted of a crime. But the reciprocal advantage of extradition in promoting law enforcement has led states to create a global network of extradition treaties. A number of states have also enacted provisions for the surrender of fugitives even in the absence of a pre-existing treaty. Such, for example, is Part II of the Canadian Extradition Act. It was by virtue of this type of legislation that the appellant was surrendered to Canada.

Most treaties are limited to crimes therein listed. This ensures that a state to which a request to surrender a person is made is not obliged to surrender its citizens and other persons within its allegiance and protection for prosecution in the requesting state for behaviour not considered criminal in the requested state. As an adjunct to the practice of restricting extradition to listed crimes, most treaties also provide that the requesting state shall not try or punish the fugitive for any crime committed before the extradition other than that for which the surrender took place. This, I suggest, would be the result in any event. When a

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state surrenders a fugitive in respect of a particular crime, that surrender must necessarily be subject to an implied condition that the requesting state will not try the fugitive for any other crime previously committed without the permission of the surrendering state; see United States v. Rauscher, 119 U.S. 407 (1886), at pp. 418, 419-22; In re Dilasser (1952), 19 Int. Law Rep. 377 (Venezuela). This is seen by some as a customary rule of international law, but it seems to me to arise out of a proper construction of the treaty; see United States v. Rauscher, supra; see also S. Z. Feller, "Reflections on the Nature of the Speciality Principle in Extradition Relations" (1977), 12 Israel Law Rev. 466, at p. 487.

Canada expressly provides that a fugitive shall not be tried or punished for a crime committed before his surrender unless he has been restored or given an opportunity to return to the state that surrendered him. Section 33 of the Extradition Act reads as follows:

33. Where any person accused or convicted of an extradition crime is surrendered by a foreign state, in pursuance of any extradition arrangement, he is not, until after he has been restored or has had an opportunity of returning to the foreign state within the meaning of the arrangement, subject, in contravention of any of the terms of the arrangement, to a prosecution or punishment in Canada for any other offence committed prior to his surrender, for which he should not, under the arrangement, be prosecuted.

Section 33 applies not only to surrenders made under formal general treaties, but to those made under informal arrangements as well. Section 2 of the Extradition Act broadly defines an "extradition arrangement" as including any arrangement for the surrender of fugitive criminals that applies between Canada and a foreign state, including the kind of ad hoc arrangement involved in this case; see R. v. Crux and Polvliet (1971), 2 C.C.C. (2d) 427 (B.C.C.A.), leave to appeal to this Court refused, [1971] S.C.R. viii.

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The appellant maintains, however, that he is immune from prosecution for crimes committed before his extradition even though he has had an opportunity to return to Brazil. Where there is a conflict between the extradition arrangement and s. 33 of the Act, he argues, the arrangement must prevail, and here he says the undertaking in the arrangement not to try or prosecute the appellant says nothing about its termination when the fugitive has had an opportunity to return to the requested state. He draws support for the first part of this proposition from the expression "within the meaning of the arrangement" in s. 33 and from s. 3 of the Act. I am prepared to agree with him that if there is a difference between s. 33 and the undertaking in the arrangement, the arrangement must govern. Section 3 of the Act makes it clear that no provision of Part I of the Act, where s. 33 is found, that is inconsistent with the arrangement has the effect of contravening the arrangement, and that that Part is to be so read and construed as to provide for the execution of the agreement.

Does Canada's undertaking, then, give the appellant immunity even after he has had a reasonable opportunity to return to Brazil? In interpreting this undertaking, it must, as in the case of other terms in international agreements, be read in context and in light of its object and purpose as well as in light of the general principles of international law; see Art. 31 of the Vienna Convention on the Law of Treaties, 23 May 1969, U.N. Doc. A/Conf. 39/27; (1969), 63 A.J.I.L. 875. When the arrangement was entered into, the appellant was in Brazil to which he owed local allegiance, and Brazil in turn owed him the correlative duty of protection. In surrendering a person under its protection, Brazil would have an interest in seeing that the surrender was not used for a purpose other than that for which it was made. In short, the undertaking was related to the surrender. The appellant, however, remains in this country no longer as a result of the surrender, but because he chooses to live here. This is not surprising; he is a Canadian citizen. As such, he is entitled to the protection of our laws, but both as a citizen and a resident, he owes allegiance to Canada and is subject to its laws. Brazil exercised its duty of protection by securing the appellant

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against prosecutions for crimes other than those for which he was surrendered. But once the appellant is no longer here because of the surrender but rather because he seeks of his own accord to live in Canada and to enjoy the protection of our laws, he owes a duty of allegiance to Canada and is subject to those laws. There can be no doubt, of course, that the appellant in this case chose to stay in Canada. He was actually out of the country for a time and returned here despite the earlier warning that he would be prosecuted for the offences for which he is now charged.

To accord the appellant the perpetual immunity he seeks would constitute a significant derogation from Canada's freedom and independence in dealing with its own citizens within its territory. The freedom and independence of states is central to the international legal order and such restrictions are not to be presumed; see The case of the S.S. "Lotus" (1927), P.C.I.J. Series A, No. 10. In particular, absent clear intentions, it is generally agreed that in construing treaties and international agreements, "that interpretation should be adopted which involves the minimum obligation for the parties and which is most favourable to the freedom and independence of States"; see Harvard Research, Draft Convention on the Law of Treaties (1935, James W. Garner Reporter), p. 940; see also Herbert W. Briggs, The Law of Nations (2nd ed.), p. 898. Consistently with this, Judge Hodgins in Dunbar and Sullivan Dredging Co. v. The Ship "Milwaukee" (1907), 11 Ex. C.R. 179 at p. 188, expressed the following proposition as a long established rule of international law: "That no independent sovereignty is to be construed to contract itself, by implication, out of its fundamental sovereign rights . … . "

In the light of the foregoing, I have no difficulty in concluding that the undertaking made to Brazil is related to prosecutions which can take place by

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reason of the surrender of a fugitive to the requesting state, not to cases where prosecution becomes possible because the accused decides to stay in the requesting state following such prosecution. It would require clear terms to persuade me otherwise, for the view proposed by the appellant would lead to absurd results. The approach I am taking, I might add, is consistent with all the cases from different nations that have been brought to our attention; see United States v. Rauscher, supra, (United States); In re Dilasser, supra, (Venezuela); Novic v. Public Prosecutor of the Canton of Basel-Stadt (1955), 22 Int. Law Rep. 515 (Switzerland); Hungary and Austria (Extradition) Case (1929), 5 Ann. Dig. Pub. Int. Law. 275 (Hungary); see also Hackworth Green H., Digest of International Law, vol. IV, pp. 232 et seq., esp. at pp. 235-36 (Germany).

The position in the present case is further strengthened by the fact that Canada also undertook not to surrender the appellant to any other state without the consent of Brazil. This condition is not limited to crimes committed before the extradition. Why would one think Brazil would wish to impose such an obligation on Canada in perpetuity? That condition bespeaks instead the idea that Canada's undertakings are to be limited to the period attributable to the surrender.

I do not attach any importance to the fact that many extradition treaties, including a majority of those applicable to Canada, expressly add a limitation to the specialty clause to the effect that the fugitive must be given an opportunity to return. In view of the principles above enunciated, I look at these additional words as having been added for clarification or out of an abundance of caution. Some of the treaties, in fact, set forth specific periods for return. Apart from such specificity, it should be remembered, a specialty clause would in strictness seem unnecessary except to give directions to law enforcement and other officials.

The appellant suggested that in some countries an extraditee may appear to have been given an opportunity to leave the country when in fact covert coercion may have been used to deny such

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an opportunity, and that specialty clauses containing no limitation may be aimed at preventing such abuses. I doubt if this argument can be given any weight. Extradition treaties are based on mutual trust between sovereign powers. What is more, it is difficult to understand why states chose one form of specialty clause rather than another. It may be owing to the vagaries of negotiation, and because a particular type of clause is traditionally used by particular countries. Among the countries with which Canada has treaties with specialty clauses containing no reasonable or specific time limits are France and Switzerland. Why we should wish to have stricter safeguards in our dealings with these friendly nations than with other countries is difficult to imagine. In this context, it is interesting that in Novic, supra, the Supreme Court of Switzerland ordered the extradition of a fugitive to France despite the unqualified character of the specialty clause in question in that case. The court there relied on the fact that the law in each country provided a period of protection to a fugitive of only one month, but I would tend to view this as a recognition by those states that immunity from prosecution following extradition is related to the surrender and is not intended to last forever.

The appellant also drew attention to the fact that, whereas s. 33 of the Extradition Act contemplates return within a reasonable time, s. 40, in Part II of the Act, makes no reference to the fact that this assurance terminates when the accused has had a reasonable opportunity to return. The latter section simply provides that no surrender from Canada shall take place in the absence of a treaty unless the foreign state gives an assurance that the person surrendered shall not be tried for any offence other than the one for which he is surrendered. As I see it, however, the reason for this distinction is as follows. Section 33 is intended to instruct and direct prosecutors and courts in Canada to ensure that Canada complies with its ordinary international obligations. Section 40, on the other hand, is there to ensure that a surrender

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made by Canada in the absence of a treaty is not used as a means to prosecute a person within its protection for crimes other than those for which that person is surrendered. But if a fugitive decides to stay in the foreign country of his own volition following prosecution for the crime for which he was surrendered by Canada, then he must take the law of the foreign country as he finds it. In the absence of clear words, the assurance must be looked upon as being related to the surrender.

Disposition

For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Yves Parisien on his own behalf.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.