Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the ontario court (general division)
Extradition ‑‑ Jurisdiction ‑‑ Conspiracy to import cocaine illegally into Canada ‑‑ Planning done in Canada ‑‑ Plan involving activities which took place in the United States ‑‑ Co‑conspirators and cocaine seized at U.S. airport while airplane being refuelled ‑‑ U.S. seeking extradition of conspirator even though conspirator never in U.S. ‑‑ Extradition judge finding want of jurisdiction on part of U.S. court to hear case ‑‑ Whether Canadian executive or extradition judge had authority to consider jurisdiction of requesting state to prosecute the fugitive for offence charged ‑‑ Nature of the links to an offence that must exist to warrant prosecution under Canadian law ‑‑ Extradition Act, R.S.C., 1985, c. E‑23, ss. 13, 18(1)(b), 22 ‑‑ Extradition Treaty Between Canada and the United States of America, Can. T.S. 1976 No. 3, arts. 1, 3, 3(3), 4(iii), 8.
Respondent participated in a scheme to import cocaine illegally from Colombia by airplane ‑‑ the Airplane Deal. The scheme was to be financed by a secondary plan to import drugs into Canada from New York. When the New York Deal failed, respondent became involved in the planning to salvage the Airplane Deal.
An airplane owned by one of the conspirators was refurbished in Florida and flown from the United States to Colombia where it received a large cargo of cocaine for transit over the United States to Nova Scotia. The execution of the Airplane Deal ended with the seizure of the cocaine and the arrest of a number of the co‑conspirators found on the airplane at an airport in Pennsylvania where the airplane had made an "unscheduled" stop for refuelling.
Respondent and 15 others were indicted in U.S. District Court with one count of conspiracy to distribute cocaine. The United States sought respondent's extradition because of his role in the conspiracy even though he was never in that country at the relevant times. The extradition judge dismissed the application for committal on the basis that the United States had no jurisdiction to prosecute the offence charged and discharged the respondent. Leave to appeal to this Court was then granted and the Court allowed the appeal, set aside the judge's order and directed him to commit the fugitive for surrender. The issue to be decided was who, the Canadian executive or the judge at the extradition hearing, has authority to consider whether the state requesting the surrender of a fugitive has jurisdiction to prosecute the fugitive for an offence for which the fugitive is charged. The Court also considered the nature of the links to an offence that must exist to warrant prosecution under Canadian law.
Held: The appeal should be allowed.
Per La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.: In extradition the concern is whether the crime was committed in the territory or jurisdiction of the requesting state, here the United States, not the jurisdiction (venue) of the court seized with the matter. This approach is the more compelling in the case of a federal offence where the whole of the United States is the appropriate jurisdiction.
An extradition judge is not vested with the function of considering the jurisdiction of the requesting state to prosecute the offence. The judge's role under s. 18(1)(b) of the Extradition Act is the modest one of determining whether the evidence would justify the fugitive's committal for trial under Canadian law if the crime had been committed in Canada. Nothing in the Act requires the judge to consider where the acts charged took place, or the jurisdiction of the requesting state. The jurisdiction of the requesting state and its organs to prosecute a crime are matters governed by the law of that state.
The determination of an extradition crime is conduct based so that the question to be asked is whether the impugned acts or conduct, if committed in Canada, would constitute a crime here. The acts charged in this case would be a crime if committed in Canada. The so‑called "double criminality rule" (no one in Canada should be extradited for behaviour that is not a crime in Canada) has been met. The "mirror image" concept should not be adopted.
The courts are charged with ensuring that the double criminality rule and the doctrine of "specialty" (which prohibits the requesting state from prosecuting for crimes other than that for which the extradition took place) are adhered to. The Canadian executive and not the courts must monitor compliance with the treaty. The issue of whether a state has gone beyond the terms of the treaty in exercising jurisdiction, however, is a matter between states. Whether a requesting state has a legitimate interest in prosecuting a fugitive is primarily an issue for the appropriate authorities in the foreign state.
Even assuming the extradition judge had authority under the Extradition Act to consider jurisdiction on the "reverse image" approach, the fugitive should be surrendered. Acts, such as the decision to refurbish the airplane and its actual refurbishing, quite apart from the landing in Pennsylvania, were committed in the United States and, had they been committed in Canada, would constitute a crime in Canada sufficient to ground jurisdiction. All the acts, taken together, constituted "a real and substantial link" to the United States.
Per Sopinka and Iacobucci JJ.: The question of whether there was a "real and substantial connection" to the United States is one of mixed law and fact and an integral part of the determination an extradition judge must make as to whether a prima facie case has been made out that the crime, if committed in Canada, would warrant a committal for trial. A review of the Treaty and the Extradition Act supports the conclusion that this is a matter which is appropriately resolved in a judicial proceeding rather than by executive fiat. Moreover, strong policy reasons favour this position. The practice in Canada has been for the extradition judge to consider jurisdiction over the offence and developments in the common law (Sinclair v. Director of Public Prosecutions and McVey (Re); McVey v. United States of America) do not warrant a change in this practice.
Article 3(3) of the Treaty provides that the domestic law of the requested state is determinative of whether the executive or other appropriate authority is empowered to decide if the requested state would exercise jurisdiction in similar circumstances. The Treaty is, therefore, neutral on this issue. It clearly provides, however, that the "mirror image" approach is to be adopted. This mixed question of law and fact requires the decision‑maker to consider the evidence as to where the acts took place, make findings in that regard and apply the law of Canada (including s. 6(2) of the Criminal Code which prohibits conviction for offences committed outside Canada and the requirement in Libman v. The Queen that there be a real and substantial connection with Canada).
The enforcement of Treaty obligations is left to the parties to the Treaty unless an appropriate authority is designated under domestic law. Sections 13 and 18(1)(b) of the Act, considered in the context of the Act as a whole, are a sufficient designation to constitute the extradition judge as the appropriate authority to decide this question. Section 13 directs that when a fugitive is brought before a judge, the case is to be dealt with, as nearly as possible, "as if the fugitive [were] brought before a justice of the peace, charged with an indictable offence". Section 18(1)(b) goes on to provide that the judge is to issue a committal order if "such evidence is produced as would, according to the law of Canada . . . justify the committal of the fugitive for trial, if the crime had been committed in Canada." In considering whether a crime has been committed in Canada, a judge at a preliminary hearing would, in any case with transnational aspects, consider whether the crime was committed outside of Canada and the effects of both s. 6(2) of the Criminal Code and Libman v. The Queen.
The extradition judge is the forum eminently suited to determine the issue mandated by Art. 3(3) of the Treaty. The alternative is to relegate its determination to the executive in some unspecified proceeding, presumably involving a hearing to determine a mixed question of law and fact, for which no provision is made either in the Treaty or the Act. Leaving the question of jurisdiction to a judge rather than the executive is more consistent with the scheme of distribution of the respective functions of the executive and the judiciary embodied in the Act. This approach respects the rights of the individual, a purpose weighing heavily in justifying extradition as a reasonable limit on the s. 6(1) Charter right to remain in Canada. Since only domestic law relating to jurisdiction need be applied, judges will not become embroiled in the lengthy and murky issue of deciding foreign law.
Finally, if the extradition judge is not empowered to deal with jurisdiction over the offence and the matter is exclusively within the authority of the executive, this Court has no jurisdiction to make that determination. This is an appeal from the decision of the extradition judge and this Court can only make any order that the extradition judge ought to have made. If determination as to jurisdiction must be made by the executive, the surrender cannot be made in compliance with the Treaty until the executive makes that determination.
Cases Cited
By La Forest J.
Considered: McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475; referred to: Argentina v. Mellino, [1987] 1 S.C.R. 536; Sinclair v. Director of Public Prosecutions, [1991] 2 All E.R. 366; Schtraks v. Government of Israel, [1964] A.C. 556; Libman v. The Queen, [1985] 2 S.C.R. 178; Liangsiriprasert v. United States Government, [1990] 2 All E.R. 866.
By Sopinka J.
Considered: McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475; distinguished: Sinclair v. Director of Public Prosecutions, [1991] 2 All E.R. 366; referred to: Libman v. The Queen, [1985] 2 S.C.R. 178; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Canada v. Schmidt, [1987] 1 S.C.R. 500; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Schtraks v. Government of Israel, [1964] A.C. 556; Duff Development Co. v. Government of Kelantan, [1924] A.C. 797; Taylor v. Barclay (1828), 2 Sim. 213, 57 E.R. 769; Chateau-Gai Wines Ltd. v. Attorney General of Canada, [1970] Ex. C.R. 366.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 6(1) .
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 6(2) , 465(3) , (4) .
Extradition Act, R.S.C., 1985, c. E‑23, ss. 13, 18(1)(b), 22.
Extradition Treaty Between Canada and the United States of America, Can. T.S. 1976 No. 3, Arts. 1, 3, 3(3), 4(1)(iii), 8, 10.
Supreme Court Act , R.S.C., 1985, c. S-26 , s. 45 .
United States Code, Title 21, §§ 841, 846.
Authors Cited
La Forest, Anne Warner. La Forest's Extradition to and from Canada, 3rd ed. Aurora, Ont.: Canada Law Book, 1991.
APPEAL from a judgment of Chilcott J., Ontario Court (General Division), June 2, 1992. Appeal allowed.
William H. Corbett, Q.C., and Robert J. Frater, for the appellant.
Michael D. Edelson and Connie D'Angelo, for the respondent.
The judgment of La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by
La Forest J. -- This case is concerned with who, the Canadian executive or the judge at an extradition hearing, has authority to consider whether the state requesting the surrender of a fugitive has jurisdiction to prosecute the fugitive for an offence for which the fugitive is charged. It also considers the nature of the links to an offence that must exist to warrant prosecution under Canadian law.
In April 1990, several individuals, including William James McGoldrick, developed a plan (the "Airplane Deal" as they called it) to procure about 2000 kilograms of cocaine in Colombia and fly it to Nova Scotia for distribution. A plane belonging to McGoldrick was to be refurbished in Florida and flown to Colombia to obtain the cocaine. The deal was expected to generate 5 to 7 million dollars in cash or cocaine. A Canadian named Harry Hill was involved in these discussions and was to secure investors for the plan.
Hill approached the respondent to solicit his participation. The respondent discussed the matter with Kenneth Mousseau and both of them advised him that he should meet with Michael Vanasse. They then developed a plan to raise enough money to finance the deal. This subsidiary plan was to purchase eight kilograms of cocaine in New York City and sell it in Canada, the profits to be used to further the Airplane Deal. To finance the New York City Deal, the respondent and Mousseau agreed to provide $225,000 which they were temporarily holding for a third party. Vanasse guaranteed the money. Hill took $25,000 and used $15,000 as a deposit on the Airplane Deal. The rest of the money was eventually given to Kenneth A. Herman, who had been brought in to supervise the New York City Deal. That deal collapsed when the money was stolen in New York. The respondent, Mousseau, Herman and Vanasse met in Ottawa in July 1990 and decided that the best way to recoup the $225,000 was to assist Hill in the Airplane Deal.
Preparations for the reception of the cocaine in Nova Scotia were made by other co-conspirators in August 1990. The plane with a number of co-conspirators departed from, and made several stops in Florida, refuelled in Georgia, and then left for Colombia. In Colombia the aircraft was loaded with 1349 kilograms of cocaine. The airplane, destined for Nova Scotia, made a stop in Allentown, Pennsylvania, on September 21, 1990. Though the stop was described as "unscheduled", there is some evidence that it was intended for refuelling. At all events, following the stop, American law enforcement officials seized the cocaine, and McGoldrick, Hill and another were arrested.
The United States sought the extradition of the respondent for his role in the conspiracy, though he was never at the relevant times in the United States. An indictment charging him and 15 others with a single count of conspiracy to distribute cocaine was filed on September 12, 1991 in the United States District Court for the Eastern District of Pennsylvania. The affidavit evidence of a United States Attorney indicates that this is a violation of Title 21, United States Code, § 846, which makes unlawful the act of conspiring to commit a violation of federal law regulating controlled substances, here a conspiracy to violate Title 21, United States Code, § 841. The offence is punishable by a minimum of 10 years' imprisonment, and where there has been a prior conviction on a drug offence by 20 years' imprisonment.
The United States formally requested the extradition of the respondent in a diplomatic note on November 5, 1991. A warrant for his arrest was issued and an extradition hearing was held before Chilcott J. of the Ontario Court (General Division). The appellant relied on affidavit evidence to establish its case for the extradition of the respondent. The primary evidence was the affidavits of the co‑conspirators Mousseau and Herman. On May 15, 1992, the judge dismissed the application for committal, and discharged the respondent. Leave to appeal to this Court was then sought and granted. Following the hearing, the Court, for reasons to follow, allowed the appeal, set aside the judge's order and directed him to commit the fugitive for surrender.
Chilcott J. had dismissed the application for committal on the basis of the threshold issue that the United States had no jurisdiction to prosecute the offence charged. That was because, in his view, there was no evidence that the acts pursuant to the conspiracy charged were intended to produce detrimental effects in the United States or that there was any substantive link between the conspiracy and the United States. In understanding his reasons, however, it is important to underline his approach to the conspiracy charged. He appears to have thought the conspiracy in the indictment was related solely to activities that had taken place in the State of Pennsylvania. He sought links to that state alone, rather than links to the United States as a whole. As he put the issue: "The question to be answered is whether there is a significant enough portion of the activities constituting the offence committed in the State of Pennsylvania, in the United States of America to give it jurisdiction over the offence." His later conclusions concerning the sufficiency of the evidence are quite consistent with this. For example, in the course of discussing that issue, he notes that the evidence "involves the respondent in the (New York deal)", which "keeping in mind the purpose for which the (New York deal) was originated and initiated and the active participation of the respondent in that venture that the respondent is a party to the main conspiracy". Again he observes that "the main conspiracy or agreement was entered into elsewhere than at Allentown, in the State of Pennsylvania". Since he determined the issue of jurisdiction only by reference to the links to Pennsylvania, his conclusion that "[t]here is no real and substantial link between the offence and the requesting state" is not inconsistent with his other conclusion regarding the matter of evidence about which he states: "[t]here is sufficient admissible evidence to establish that the fugitive was part of a conspiracy, but the conspiracy of which he was a member was not the one set out in the . . . Indictment of the Eastern District of Pennsylvania . . .".
I should immediately observe that I respectfully disagree with the extradition judge's approach to the jurisdictional issue. What one is concerned with in extradition is whether the crime was committed in the territory or jurisdiction of the requesting state, here the United States, not the jurisdiction (perhaps more appropriately described as venue) of the particular court that may be seized with the matter; see Extradition Treaty Between Canada and the United States of America, Can. T.S. 1976 No. 3, Art. 1. That approach seems to me to be even more compelling in the case of a federal offence, like the one in question here, where the whole of the United States is the appropriate jurisdiction. The specification in the indictment that the offence is alleged to have occurred in Allentown in the Eastern District of Pennsylvania is presumably there to ground jurisdiction for the purposes of domestic United States law in the court of that district, but one cannot ignore the reference to the fact that the offence charged includes activities that take place "elsewhere". And as will become apparent later, there were sufficient acts committed in other parts of the United States to give that country jurisdiction, at least in accordance with the Canadian law on the subject. I leave aside for the moment whether there might even have been sufficient links in the State of Pennsylvania to support jurisdiction on that ground. For I wish now to turn to the issue on which the appellant grounded its appeal, namely, whether an extradition judge has jurisdiction to entertain any of those questions.
Counsel for the appellant argued that an extradition judge simply is not vested with authority to consider whether the requesting state has jurisdiction over the offence charged. The primary responsibility of that judge under s. 18(1)(b) of the Extradition Act, R.S.C., 1985, c. E-23, he added, was to determine whether such evidence has been produced as would, according to Canadian law, justify the committal of the fugitive for trial if the crime had been committed in Canada. The whole matter of the jurisdiction of the requesting state, he maintained, fell outside the ambit of the extradition judge's function. Assuming, which he denied, that the extradition judge had any role to play in considering the requesting state's jurisdiction to prosecute, it could only be in terms of fitting the facts constituting the offence into the Canadian legal framework in the course of performing his task of determining whether the acts charged would constitute a crime according to the law of Canada ‑‑ a type of "mirror image" approach under which only the specific acts that took place in the United States would be considered to have taken place in Canada.
I state immediately that I am fully in agreement with counsel's submission that an extradition judge is not vested with the function of considering the jurisdiction of the requesting state to prosecute the offence. As this Court has repeatedly stated, the judge's role under s. 18(1)(b) of the Act is the modest one of determining whether such evidence is produced as would justify the fugitive's committal for trial under Canadian law if the crime had been committed in Canada; see, for example, Argentina v. Mellino, [1987] 1 S.C.R. 536, at p. 553. If such evidence has been produced, the judge must commit the fugitive for surrender; otherwise the judge must discharge him. There is nothing in the Act that requires the judge to consider where the acts charged took place, or the jurisdiction of the requesting state. The issue of the jurisdiction of the requesting state and its organs to prosecute a crime is essentially a matter governed by the law of that state. And the decision of this Court in McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475, at p. 529, (a case, it should be said, that had not been decided at the time of the extradition hearing in the present case) makes it clear that "the extradition judge `is not concerned with foreign law at all'". The difficulties and delays inherent in a judge's examining issues of foreign law are fully set forth in McVey, at p. 528, and I need not repeat them. I need only say that, if anything, the determination of the jurisdiction of a foreign state by a judge unfamiliar with the relevant law seems to me to be an even more thorny task than a determination of the substantive law of that state.
At all events, that is not what s. 18(1)(b) calls upon the extradition judge to do. What it mandates is that the judge determine whether the evidence produced establishes a prima facie case that would justify committal for trial "if the crime had been committed in Canada" (emphasis added). McVey has held that the determination of an extradition crime is conduct based. The question to be asked, then, is whether, if the impugned acts or conduct had been committed in Canada, they would constitute a crime here; see McVey, at pp. 536 and 541. It is not whether, if some of the conduct had been committed here and some abroad, it would be a crime here. Like the extradition judge, I have no doubt that the acts charged, if committed in Canada, would be a crime here. The so-called "double criminality rule" has thus been met. There is no need, and in my view, it would be wrong, to adopt the "mirror image" concept. All the Act requires is that the act or conduct with which the fugitive is charged would be an extradition crime "if the crime [the act or conduct] had been committed in Canada" (emphasis added). This is entirely in keeping with the underlying reason for the double criminality rule that no one in Canada shall be surrendered for prosecution outside this country for behaviour that does not amount to a crime in this country.
The double criminality rule (coupled with the doctrine of "specialty" which prohibits the requesting state from prosecuting for crimes other than that for which the extradition took place) are the procedures adopted by the high contracting parties to protect the individual. This type of duty is assigned to the courts. The issue of whether a state has gone beyond the terms of the treaty in exercising jurisdiction is a matter between states. The question whether a requesting state has a legitimate interest in prosecuting a fugitive is primarily an issue for the appropriate authorities in the foreign state. As it was put in McVey, at p. 549:
. . . the act must be a crime in the requesting country. Why would it prosecute otherwise? That originally is a matter for the prosecuting authorities and ultimately for the courts of the demanding state, here the United States. Similarly, officials in the State Department in the United States must conclude that the act charged falls within the treaty according to the laws of that country. They are unfamiliar with our laws. The requested state will naturally wish to monitor the treaty to ensure that its obligations are engaged, and for that purpose the requesting state is required by the treaty to supply documentation enabling the requested state to do so.
As noted in the passage just cited, there is a role for Canada in monitoring compliance with that treaty, but that role is not one for the courts. It is one for the executive as McVey makes clear, at p. 551:
The issue of whether the act charged was a crime under United States law was for the prosecutors in the United States to decide, and it was for them and the U.S. State Department to assess whether in their view it came within the treaty, subject to monitoring by Canada pursuant to the treaty. The monitoring task has not, for good reason, been assigned to the extradition judge, so it remains with the executive. [Emphasis added.]
Support for this approach may also be found in Sinclair v. Director of Public Prosecutions, [1991] 2 All E.R. 366 (H.L.), at pp. 383-84, where Lord Ackner in examining the respective roles of the extradition judge and the executive in giving effect to the treaty discussed the recent cases, including Schtraks v. Government of Israel, [1964] A.C. 556, at p. 579, where the extradition judge relied on the executive's view of what constituted the "territory" of the requesting state, and concluded, at p. 384: "Mr. Jones [the counsel for the prosecution] is thus supported in his contention that monitoring the provisions of the treaty is an executive, and not a magisterial, function" (emphasis added).
This approach is entirely consistent with the terms of the Treaty. Thus Art. 3(3) specifies the executive as the authority to consider the jurisdiction of the requesting state over crimes committed outside its territory. It reads:
Article 3
. . .
(3) When the offense for which extradition has been requested has been committed outside the territory of the requesting State, the executive or other appropriate authority of the requested State shall have the power to grant the extradition if the laws of the requested State provide for jurisdiction over such an offense committed in similar circumstances.
The power set forth in this provision can be assigned to other appropriate bodies, but there is no provision giving the court that power in the Extradition Act or otherwise. In considering this matter, the extradition judge was usurping the function of the executive. I am aware, of course, that extradition judges have in the past considered whether the requesting state had jurisdiction over the offence charged, but that was at a time preceding Sinclair and McVey, supra, and other cases that have clarified the limited role of the extradition judge.
That is sufficient to dispose of the case. However, even assuming the extradition judge had authority under the Extradition Act to consider jurisdiction on the "reverse image" approach, I would come to the conclusion that the fugitive should be surrendered. For if only the specific acts committed in the United States had been committed in Canada, it would constitute a crime in Canada over which jurisdiction would be exercisable under Canadian law. The refurbishing of the plane took place in Florida, as did the agreement to do so and to fly it to Colombia to pick up drugs for delivery in Nova Scotia. That would in itself be sufficient to ground jurisdiction. Section 465(3) of the Criminal Code , R.S.C., 1985, c. C-46 , provides that a person who conspires with anyone to commit a crime outside Canada shall be deemed to have conspired to do so in Canada, and s. 465(4) provides for the converse situation. But this was by no means all the relevant overt acts. The plane took off from a point in Florida, landed at other areas in that state and in Georgia. As well, the New York City Deal was taken as a step in advancing the overall conspiracy (the Airplane Deal). All of these acts taken together are quite sufficient overt acts in the United States, even apart from what occurred in Allentown, to constitute a "real and substantial link" to the United States as described by this Court in Libman v. The Queen, [1985] 2 S.C.R. 178, at p. 213. In that case, the accused conducted a fraudulent telephone sales solicitation scheme in Toronto from which United States residents were called with a view to defraud them by selling them stocks in a Costa Rica company, for which the purchase price was paid either in the United States or Costa Rica. This Court held that there were sufficient connections to permit prosecution in Canada. As is earlier indicated, the extradition judge would have come to the same conclusion had he not focussed wholly on the activities in Allentown, a matter related, as I have indicated earlier, more to the jurisdiction of the particular court (a matter par excellence of United States law) than to the territorial jurisdiction of the United States. Indeed this amounted to an interpretation of the indictment, also a matter of United States law.
I should add that perhaps more significance should be attached to what occurred in Allentown than the judge gave it. The landing in Allentown was, we saw, described as an "unscheduled stop", but there is some evidence that the landing might have been intended to serve the purpose of refuelling. Apart from this, in conspiring to fly drugs from Colombia to Nova Scotia, it must have been intended that the necessary steps be taken, including making stopovers if need be. In considering this stopover, it should not be overlooked that the taking of the drugs into Allentown would constitute the offence of possessing illicit drugs there. In considering this matter, it is well to take cognizance of the real nature of drug trafficking and other transnational crimes. The following sentiments expressed by Lord Griffiths in Liangsiriprasert v. United States Government, [1990] 2 All E.R. 866 (P.C.), at p. 878, are apt here:
Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.
To conclude, I am of the view that the judge should not have considered the issue of territoriality or jurisdiction at all. That is a matter for the executive, as contemplated by the Treaty. There is nothing in the Extradition Act that gives the extradition judge any power to deal with the matter, his sole authority being to consider whether there is sufficient evidence (which he held there was here) to constitute the crime if it had been committed in Canada. Even if the judge were vested with the authority, the facts of this case amply fulfil the requirement of real and substantial connection under the test set forth in Libman.
These reasons, in my view, fully support the judgment given at the conclusion of the hearing in this Court, namely: "The appeal is allowed. The order discharging the respondent is set aside and the matter is remitted to the extradition judge with a direction to commit the respondent."
The reasons of Sopinka and Iacobucci JJ. were delivered by
Sopinka J. -- I agree with the conclusion of my colleague, Justice La Forest, that the appeal should be allowed and an order of committal issued. I would do so solely on the ground that the extradition judge ought to have found that if the situation were reversed and the conduct which occurred in the United States occurred in Canada, there would be a real and substantial connection to Canada so as to found jurisdiction over the offence. My colleague and I are not in disagreement that this is a determination that must be made, but only as to who should make it. My colleague says that it should be the executive, while I am of the opinion that this is a question of mixed law and fact which is part and parcel of the determination that an extradition judge must make under the Extradition Act, R.S.C., 1985, c. E-23 (the "Act") that a prima facie case has been made out that, if the crime were committed in Canada, a committal for trial would be justified.
I stress at the outset that there is nothing in the reasons of the majority in McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475, that resolves this issue. That case decided that the decision by the extradition judge was "conduct based" in that the judge was not empowered to consider foreign law so as to determine whether the conduct was an offence in the requesting state. It followed that it was not part of the judge's function to determine whether the offence was listed in the Treaty under its foreign label. At page 526, La Forest J. described the resulting function of the extradition judge as follows:
That function is to determine whether there is sufficient evidence that a fugitive accused has committed an act in the requesting state that would, if committed in Canada, constitute a Canadian crime listed or described in the treaty.
A review of the Treaty (Extradition Treaty Between Canada and the United States of America, Can. T.S. 1976 No. 3) and the Act supports the conclusion that this is a matter which is appropriately resolved in a judicial proceeding rather than by executive fiat. Moreover, there are strong policy reasons in favour of this position. Furthermore, as my colleague points out, the practice in Canada has been for the extradition judge to consider jurisdiction over the offence. I respectfully disagree that there is any justification for a change in this practice by reason of the decisions in Sinclair v. Director of Public Prosecutions, [1991] 2 All E.R. 366 (H.L.), or McVey, supra.
With the exception of Art. 4(1)(iii) dealing with offences of a political nature, the Treaty does not specify by whom extradition issues are to be determined. Rather, this is left to the laws of the contracting states. Thus, Art. 8 provides:
Article 8
The determination that extradition should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use all remedies and recourses provided by such law.
While Art. 1 restricts extradition to those who have been convicted or are charged with an offence committed within the respective territories of the parties, and Art. 10 specifies that extradition is only to be granted if under the laws of the requested state the fugitive would be committed for trial, determination of these matters is left to the laws of the requested state. Article 3(3), to which my colleague refers, does not, as suggested, specify that it is the executive that must decide the issue in question. I reproduce the sub-article for ease of reference:
Article 3
. . .
(3) When the offense for which extradition has been requested has been committed outside the territory of the requesting State, the executive or other appropriate authority of the requested State shall have the power to grant the extradition if the laws of the requested State provide for jurisdiction over such an offense committed in similar circumstances. [Emphasis added.]
The underlined words make it clear that, in keeping with the general tenor of the Treaty, it is left to the domestic law of the requested state to determine whether the executive or other appropriate authority is to make this decision. During oral argument, counsel for the appellant conceded that if this Court were to determine that an extradition judge had the authority to consider the issue of jurisdiction, then he or she would "certainly be the other appropriate authority" pursuant to Art. 3(3). The Treaty is, therefore, neutral on the issue before us, although what is clear is that, whoever is the decision-maker, the "mirror image" approach is to be adopted. Accordingly, the decision-maker must consider whether in similar circumstances under Canadian law our courts would assume jurisdiction over the offence. This mixed question of law and fact would require the decision-maker to consider the evidence as to where the acts took place, make findings in that regard and apply the law of Canada which would include s. 6(2) of the Criminal Code , R.S.C., 1985, c. C-46 , and cases of which the most recent is Libman v. The Queen, [1985] 2 S.C.R. 178.
Turning to the Act, there is only one specific provision that confers a power on the executive and that is s. 22 which confers a discretion to refuse extradition for political crimes. Nonetheless, the enforcement of Treaty obligations is left to the parties to the Treaty unless under domestic law an appropriate authority is designated. In my opinion, ss. 13 and 18(1)(b) of the Act considered in the context of the Act as a whole, are a sufficient designation to constitute the extradition judge the appropriate authority to decide this question. Section 13 directs that when a fugitive is brought before a judge the case is to be dealt with, as nearly as possible, "as if the fugitive was brought before a justice of the peace, charged with an indictable offence". Our Court has held that this provision, in combination with other provisions of the Act, determines the standard of proof at a preliminary hearing. See United States of America v. Shephard, [1977] 2 S.C.R. 1067. Section 18(1)(b) goes on to provide that the judge is to issue a committal order if "such evidence is produced as would, according to the law of Canada . . . justify the committal of the fugitive for trial, if the crime had been committed in Canada"/ In considering whether a crime has been committed in Canada, a judge at a preliminary hearing would, in any case with transnational aspects, consider whether the crime was committed outside of Canada and beyond the jurisdiction of the court by virtue of s. 6(2) of the Criminal Code . Libman has interpreted this provision to mean that there must be a real and substantial connection to Canada of the alleged acts constituting the offence in order to give jurisdiction to a Canadian court.
The extradition judge, therefore, would appear to be the forum that is eminently suited to determine the issue mandated by Art. 3(3) of the Treaty. The alternative is to relegate its determination to the executive in some unspecified proceeding for which no provision is made either in the Treaty or the Act. Presumably, in order to determine a mixed question of law and fact, some kind of a hearing would have to be held in order to comply with the rules of fairness and the Canadian Charter of Rights and Freedoms . No provision is made for such a hearing and its nature and form would have to be judicially invented. This would mean that there would be two hearings instead of one and an issue that is conveniently dealt with in one proceeding would be bifurcated.
There are other valid reasons to support the interpretation of the Act that would leave this question to the decision of a judge rather than the executive. First, this approach is more consistent with the scheme of distribution of the respective functions of the executive and the judiciary embodied in the Act. Second, this approach respects the rights of the individual, a purpose that was recognized as an important one by our Court and which weighed heavily in justifying extradition as a reasonable limit on the Charter right to remain in Canada set out in s. 6(1) thereof.
In McVey, La Forest J. explained the rationale underlying the allocation of functions in the Act. At page 519, he stated:
In essence, the treaty obligations are of a political character to be dealt with in the absence of statute by the political authorities. However, as Laskin J. noted in Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, at p. 245, the liberty of the individual has not been forgotten in these rather special proceedings. The treaties, sensitive to the liberty of the individual, contain provisions for their protection. Most important is the requirement that there be prima facie evidence that the act charged would constitute a crime in Canada. This specific matter, about which judges are most competent, is the task assigned to a judge by the Extradition Act.... Barring statutory provision, the task of dealing with international treaty obligations is for the political authorities, and is performed by the Ministers and departments in the course of fulfilling their appropriate mandates. The Extradition Act, of course, gives the Minister of Justice authority respecting the surrender of a fugitive; see ss. 20 - 22 and 25. The treaty terms are aimed at the obligations of the parties and not the internal procedures by which these are to be carried into effect. [Emphasis added.]
In assessing the content of the proceedings before the extradition judge designed for the protection of the individual, it seems unusual to excise a part which is the daily fare of a provincial court judge presiding over a preliminary hearing and which, until recently, was dealt with by extradition judges. It is surely a matter in respect of which judges are especially competent and for which the executive is ill-equipped. Indeed, it has been forcefully argued that it is to judges that we should look for protection against the excessive exercise of jurisdiction by foreign states. In La Forest's Extradition to and from Canada (3rd ed. 1991), at pp. 55-56, the learned author, Anne La Forest, states:
Before the extradition of an accused fugitive will be granted, the act charged must have been committed within the jurisdiction of the demanding country. In practice, this usually means its territory, which is of course by far the most common basis of criminal jurisdiction. States are only interested in prohibiting acts abroad to the extent that they affect matters within their own territory. Further, states are reluctant to interfere with matters that more naturally fall within the territory of another state. Probably because of this, some extradition treaties, including the most recent ones, provide for the surrender of fugitives who have committed crimes within the "territory" of the demanding state. Others, however, do speak of "jurisdiction". Whether this makes any difference is not entirely clear. . . . Moreover, the courts, as part of the territoriality principle, will hold acts having a real and substantial connection with a state as having been committed there even though the conduct itself may have been committed outside its territory. . . . Courts in the requested state could possibly act against excessive exercises of jurisdiction by other states in various ways; for example, by holding that the acts complained of would not be a crime in the requested state, and so not be an extradition crime. [Emphasis added; footnotes omitted.]
Finally, on this point, I observe that there is no concern here that judges will become embroiled in the lengthy and murky issue of deciding foreign law which was thought to be a problem by the majority in McVey.
For many years, this Court has stressed that the scheme of the Act demonstrates a special concern for individual liberty as against foreign claims for surrender. In Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, Laskin J. (as he then was) stated, at p. 245:
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 theme was picked up by La Forest J. in Canada v. Schmidt, [1987] 1 S.C.R. 500. Speaking for the majority, which included Dickson C.J. and Beetz, McIntyre and Le Dain JJ., he stated, at p. 515:
However, as Laskin J. (as he then was) noted in Commonwealth of Puerto Rico v. Hernandez . . . concern for the liberty of the individual has not been overlooked in these rather special proceedings. That is why provision is made in the treaties and in the Extradition Act to ensure that, before the discretion to surrender can be exercised, a judicial hearing must be held for the purpose of determining whether there is such evidence of the crime alleged to have been committed in the foreign country as would, according to the law of Canada, justify his or her committal for trial if it had been committed here. If so, the judge commits the fugitive for surrender, and the executive may then exercise its discretion to surrender; if not, he or she is discharged (s. 18 of the Act). The hearing is similar to a preliminary hearing, the presiding judge being ordained by s. 13 of the Act to hear the case in the same manner, "as nearly as may be", as at a preliminary hearing for a crime committed in this country.
The existence of these provisions for the protection of the liberty of the individual was a substantial factor in the decision of the majority in upholding the constitutional validity of the Act in United States of America v. Cotroni, [1989] 1 S.C.R. 1469. Dealing with the issue of proportionality, La Forest J. concluded that the right to remain in Canada guaranteed by s. 6(1) of the Charter was infringed "as little as reasonably possible". In coming to this conclusion he stated, at p. 1490:
Furthermore, as is indicated in Canada v. Schmidt, supra, extradition practices have been tailored as much as possible for the protection of the liberty of the individual. It accords the same kinds of rights (though in a necessarily attenuated form) as are afforded to an accused under ss. 7 and 11 of the Charter . [Emphasis added.]
Furthermore, in answer to the argument of counsel for the appellant El Zein that too much discretion was given to the executive, La Forest J. stated, at pp. 1499-1500:
There is, it is true, some discretion in the federal government under the treaties to refuse surrender, for example, where the crime is one of a political character. There may, as well, be cases where the government, for high political purposes or for the protection of an accused, may be prepared not to conform with a treaty. But this executive discretion would rarely be exercised and is impossible to define in the abstract. That is scarcely surprising. The extradition process is not arbitrary, unfair or based on irrational considerations. As was noted in Canada v. Schmidt, supra, at p. 515, the procedure is tailored with an eye to the liberty of the individual. [Emphasis added.]
I am concerned that having sustained the Act on this basis we must be careful not to chip away at what was stressed as the principal protection for the liberty of the individual, namely, a judicial hearing with respect to issues that impinge on those rights involving questions of mixed law and fact of the kind that are best decided by a judge. It seems inconsistent with the approach to the interpretation of the Act propounded in Cotroni stressing the importance of the hearing to the rights of the individual and then to proceed to interpret the content of that hearing as ever-increasingly "modest".
My colleague finds some support for his approach in Sinclair v. Director of Public Prosecutions, supra, which in turn relied on Schtraks v. Government of Israel, [1964] A.C. 556. I make two observations. First, neither of these cases addresses the issue in this case. Second, to the extent that the language in the cases supports a narrowing of the judicial role and expansion of that of the executive, it cannot be transplanted to Canada where the provisions of our Act are designed to protect "as much as possible" the rights of the individual which are guaranteed by a charter of rights and freedoms.
In Sinclair, there were two issues arising out of a request for extradition by the United States addressed to the United Kingdom and based on the Treaty between them: (i) could the magistrate order a stay of proceedings because the extradition constituted an abuse of the process; and (ii) could the magistrate decide that a time limit on extradition had lapsed. Lord Ackner decided that the first issue was beyond the jurisdiction of the magistrate. He also held that the magistrate could not consider foreign law in order to determine whether the requesting state had complied with the Treaty before submitting its request. On the other hand, he concluded that the magistrate was right in determining that relevant provisions of the Treaty did not apply. In so far as Lord Ackner relied on Schtraks in determining the respective roles of the executive and the judiciary, it is not readily apparent that the case addresses this point. The issue was whether Jerusalem was part of the territory of Israel within the meaning of the Treaty between the governments of Israel and the United Kingdom. The extradition magistrate relied at least in part on a letter from the Foreign Office that Her Majesty's Government recognized that Israel had de facto authority over Jerusalem. The issue as to whether the magistrate was correct in his determination that Jerusalem was within the territory of Israel was answered in the affirmative. There is nothing to suggest that this issue was beyond his jurisdiction or that the decision was for the executive. It is one thing for a court to rely on the executive regarding the existence of a foreign state or the extent of its territory. It is quite another to hold that action that has taken place partially within and partially outside that territory should fall within the jurisdiction of that state for the purpose of an extradition treaty. See Duff Development Co. v. Government of Kelantan, [1924] A.C. 797; Taylor v. Barclay (1828), 2 Sim. 213, 57 E.R. 769; and Chateau-Gai Wines Ltd. v. Attorney General of Canada, [1970] Ex. C.R. 366.
Finally, I should point out that if my colleague is right on the first issue and the extradition judge was not empowered to deal with jurisdiction over the offence, a matter exclusively within the authority of the executive, then this Court has no jurisdiction to make that determination. This is an appeal from the decision of the extradition judge and we can only make any order that he ought to have made. If he was without authority to find jurisdiction over the offence we are similarly limited. See s. 45 of the Supreme Court Act , R.S.C., 1985, c. S-26 . That determination must be made by the executive and, until made, the surrender cannot be made in compliance with the Treaty.
I would dispose of the appeal as proposed by La Forest J.
Appeal allowed.
Solicitor for the appellant: John C. Tait, Ottawa.
Solicitors for the respondent: Addelman, Edelson & Meagher, Ottawa.
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