Supreme Court of Canada
Vardy v. Scott et al., [1977] 1 S.C.R. 293
Date: 1976-02-25
Oliver L. Vardy Appellant;
and
Clement Scott, John Connors and T. Alex. Hickman Respondents.
1975: December 9, 10; 1976: February 25.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF NEWFOUNDLAND, IN BANCO
Extradition—Procedure—Depositions for extradition proceedings—Right of counsel for accused to be present—Right of counsel for accused to cross-examine deponents—Statements prepared in typewritten form prior to appearance merely signed before magistrate—Mandamus to direct that affidavits be properly taken—Criminal Code, R.S.C. 1970, c. C-34, s. 468—Extradition Act, R.S.C. 1970, c. E-21, s. 31.
Mandamus—Depositions for use in extradition proceedings—Depositions sent to foreign state—Allegations of impropriety—Availability of mandamus—Criminal Code, R.S.C. 1970, c. C-34, s. 468—Extradition Act, R.S.C. 1970, c. E-21, s. 31.
Accused, a former senior civil servant in the Province of Newfoundland, was charged under the Criminal Code with fraud, bribery and breach of trust. Warrants were issued for his arrest. He was taken into custody in Panama and flown to Miami, Florida, where he was to be transferred to an Air Canada flight to Montreal. At Miami accused applied for landed immigrant status and became the subject of an application for extradition. In order to pursue the extradition proceedings the Director of Public Prosecutions of Newfoundland had a number of witnesses brought before a magistrate to give evidence by deposition for use in the Florida extradition proceedings as provided in s. 31 of the Extradition Act, R.S.C. 1970, c. E‑21. Sub-section (1) of s. 31 provides that the depositions may be taken ‘in the absence of the person accused of an extradition crime. Counsel for the accused attended some of the proceedings at which the respondent magistrate ruled that he could not cross-examine the deponents. Counsel for the accused was not informed of the time or place of taking the remaining depositions although he requested such information from the Crown. Some of the depositions were apparently prepared in advance and simply signed by the depo-
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nents in the presence of the magistrate. The depositions once signed and sworn were certified by the magistrate and then sent to the United States after authentication by T. Alex. Hickman, Attorney General of Newfoundland, the Deputy Minister of Justice at Ottawa and by a U.S. Embassy official at Ottawa. Accused sought a writ of mandamus in the Supreme Court of Newfoundland, first, to stay proceedings, second, to declare the depositions null and void and, third, to order the return of the documents to the Magistrate’s jurisdiction. The Chief Justice of Newfoundland dismissed the application for mandamus and his judgment was confirmed on appeal by the Supreme Court of Newfoundland in banco. Appeal to the Supreme Court of Canada lay as of right pursuant to s. 36 (b) of the Supreme Court Act (since repealed by 1974(Can.), c. 18, s. 3) when appellant sought, firstly, an order to recall the depositions and/or to inform the Minister of Justice for Canada that they were not taken according to the laws of Canada and, secondly, an order to allow counsel for the appellant the right to cross-examine on any deposition taken or to be taken under s. 31 of the Extradition Act.
Held (Laskin C.J. and Spence J. dissenting in part): The appeal should be dismissed.
Per Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré: Section 31(1) of the Extradition Act authorized the magistrate to take depositions in the absence of the accused appellant who had no right to be present by counsel or to have his counsel cross‑examine the deponents. The words of s. 31(1) “… in like manner as he might take the depositions if the accused were present and charged before him with such extradition crime” could not be regarded as importing all of s. 468 of the Criminal Code. Sections 31(1) imports, at most, the mechanical aspects of deposition-taking alluded to in s. 468. The duty of the magistrate under s. 31(1) is simply to “take depositions”. He is not presiding at a hearing, nor is he determining any issue of fact or law. A deposition is nothing more than a statement on oath in a judicial proceeding, taken down in writing and sworn before a justice and the facts alleged by appellant did not support the view that the depositions were not taken before the magistrate.
Per Laskin C.J. and Spence J. dissenting: While s. 31 of the Extradition Act does not entitle the person whose extradition is sought to participate in the taking of the depositions and while notice need not be given to that person there is no reason why counsel instructed by him
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should be prevented from attending at the taking of the depositions. If s. 468 of the Criminal Code has any operation at all it should include openness of the proceedings. In the circumstances and on the basis of the affidavits filed, mandamus should issue to direct that depositions taken from three of the deponents be taken properly. While pre-preparation of a deposition need not be per se irregular what was done in these three cases passed acceptable informality.
[In re Collins (1905), 11 B.C.R. 436; Grin v. Shine (1902), 187 U.S. 181; Re State of Wisconsin and Armstrong, [1973] F.C. 437 referred to.]
Courts—Jurisdiction in appeal—Magistrate taking depositions for extradition proceedings—Supervisory jurisdiction in Provincial Supreme Court—Federal Court excluded—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10—Extradition Act, R.S.C. 1970, c. E-21, s. 31.
Per Curiam: A magistrate taking depositions under the Extradition Act performs a function different from that of an extradition judge. The peripheral powers exercised by the magistrate under the Extradition Act are analogous to his usual judicial duties and do not justify regarding him as a persona designata and therefore within the scope of s. 2(g) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. The mandamus was properly sought in the Provincial Supreme Court.
Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Lavell v. A.-G. Can., [1971] F.C. 347 distinguished.
APPEAL from a judgment of the Supreme Court of Newfoundland in banco dismissing an appeal by the accused from the dismissal of an application for a writ of mandamus. Appeal dismissed, Laskin C.J. and Spence J. dissenting in part.
Robert Nelson, for the appellant.
James J. Greene, Q.C., for the respondents.
The judgment of Laskin C.J. and Spence J. was delivered by
THE CHIEF JUSTICE (dissenting in part)—I agree with my brother Dickson that s. 31 of the Extradition Act, respecting the taking of deposi-
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tions to be used in a foreign state in connection with the extradition of a person accused of an extraditable crime, does not entitle that person to participate in the taking of the depositions. The fact that the accused person held in a foreign state becomes aware of the fact that depositions will be taken and instructs counsel to represent him does not change the situation.
In my view, however, although notice need not be given to that person, I see no reason why counsel instructed by him should be prevented from attending at the taking of the depositions. If s. 468 of the Criminal Code, which is referentially mentioned in s. 31 of the Extradition Act, has any operation at all, it should certainly include openness of the proceedings, which is an important value in our system of administration of justice. The evasion practised by the then Director of Public Prosecutions in Newfoundland when information was sought by the appellant’s counsel as to the time and place of the taking of the depositions is fully set out in an affidavit of that counsel, and I accept unreservedly his narration of what occurred. (The appellant was, of course, represented by a different counsel in this Court.) I think that the Crown counsel behaved badly towards a fellow lawyer without reasonable excuse. That, however, gives no ground of relief to the appellant in this case.
The point in this appeal which troubles me is whether certain depositions were regularly taken. The record shows that about thirty-six depositions were taken, and three of these are the subject of affidavits which indicate that they were not so much taken as presented for signature, after having been prepared by the Director of Public Prosecutions without a fair opportunity to the deponents to consider their contents and to have them verified before a magistrate. I refer to the depositions taken from William Alexander MacPherson, Prospero Joseph DeSantis and Jack L. Goodson. The affidavit of appellant’s counsel (previously referred to) respecting the Goodson deposition and the affidavits of MacPherson and DeSantis as to how their depositions were taken persuade me, in the absence of evidence to the contrary, that
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they were foisted on the deponents by the Director of Public Prosecutions. There is no indication that a stenographer was present to record any of the proceedings; indeed, the affidavit of appellant’s counsel states in respect of the Goodson deposition that no stenographer was present nor was any recording equipment evident.
I think it is open to the Court to issue mandamus at the instance of the appellant to direct that the depositions of the aforementioned three persons be taken properly. I do not say that pre‑preparation of a deposition is per se irregular, but what was done in the three instances I have mentioned passes any acceptable informality.
I would allow the appeal to this limited extent. I may add that I also agree with my brother Dickson that mandamus could properly be sought in this matter from the Newfoundland Courts and that it is not within the jurisdiction of the Federal Court.
The judgment of Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by
DICKSON J.—This appeal raises an important question as to the right of cross-examination; subsidiary questions are presented but they fall to be determined only if the primary question is decided favourably to the appellant, Oliver L. Vardy.
The case arose in this way. Mr. Vardy, a former senior civil servant of the Province of Newfoundland, was charged under the Criminal Code in December, 1973, with fraud, bribery and breach of trust. Warrants were issued for his arrest. He was taken into custody in Panama, late in January, 1974, and placed on a Pan-American plane to go from Panama City, Panama to Miami, Florida where he was to be transferred to an Air Canada flight to Montreal. At Miami he applied for landed immigrant status. He also became the subject of a complaint for extradition filed in the United States District Court for the Southern District of Florida. He was arrested and released on $50,000 bond upon condition that he remain
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within the Southern and Middle Districts of Florida, where he currently resides.
From affidavits filed, it appears that on January 25, 1974, the Canadian Embassy at Washington, D.C., delivered a note to the State Department of the United States requesting Vardy’s extradition. Section 30(1) of the Extradition Act authorizes the Minister of Justice of Canada to make a requisition for the surrender of a fugitive criminal from Canada, who is or is suspected to be in a foreign state with which there is an extradition treaty. Section 31 of the Extradition Act, the construction of which is at the heart of the present appeal, makes provision for the taking in Canada of depositions for use in extradition proceedings in a foreign state. Sub-sections (1) and (2) of s. 31 read:
31. (1) Whenever, for the purposes of this Act, it becomes necessary or expedient to secure evidence by depositions taken in Canada to be used in a foreign state, any justice of the peace, or any person having authority to issue a warrant for the apprehension of persons accused of offences and to commit such persons for trial, may take depositions in the absence of a person accused of an extradition crime in like manner as he might take the depositions if the accused person were present and charged before him with such extradition crime.
(2) Such justice of the peace or person having authority as aforesaid may, by subpoena or order, command the attendance at the time and place therein mentioned, of any person or witness for the purpose of being examined as to any extradition crime charged under this Act, and may require the production of any writings or other documents relating to the charge that are in the possession or power of such person or witness.
The Director of Public Prosecutions of Newfoundland, John Connors, issued subpoenas to approximately 36 people to give evidence by deposition for use in the Florida extradition proceedings. The appellant Vardy retained counsel to appear for him at the taking of the depositions. At the taking of the deposition of one Jack L. Good-son, charged in conjunction with Vardy, Mr. Connors objected to the presence of counsel for Vardy, as did Goodson and his counsel. The respondent magistrate, Clement Scott, ruled that counsel
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could attend the proceeding but not cross-examine Goodson. Counsel for the appellant was not informed of the time or place of taking the remaining depositions although he requested such information from Mr. Connors. In all, some 24 depositions were taken and sworn before Magistrate Hugh O’Neill and 13 depositions before Magistrate Clement Scott. The depositions were bound and then certified by the magistrate and, accompanied by a certificate of authentication completed by T. Alex. Hickman, Attorney General for the Province of Newfoundland, delivered to the Deputy Minister of Justice at Ottawa. Further certificates of authentication were added by the Deputy Minister and by an official at the United States Embassy at Ottawa. Finally, on April 12, 1974, two copies of the extradition record were delivered to the United States Department of Justice in Washington. The record was filed in the United States District Court for the Southern District of Florida at Miami on May 6, 1974. The extradition hearing in Florida, on the merits, has been postponed sine die pending the outcome of an interlocutory appeal by the appellant before a Louisiana Court.
The proceedings in Canada took the form of a motion for a writ of mandamus before the Supreme Court of Newfoundland. The notice of motion reads as follows:
TAKE NOTICE that leave of the Honourable the Chief Justice having been given on the 10th day of May A.D. 1974, the Court will be moved on the 28th day of May A.D. 1974, at 10:30 o’clock in the forenoon or as soon thereafter as Counsel may be heard, on behalf of Oliver L. Vardy, for an Order directed to the Respondents to show cause why a Writ of Mandamus to the said Respondents ordering that the proceedings with respect to two certain Informations charging Oliver L. Vardy with violations of Section 338(1), Section 110(c) and Section 111 of the Criminal Code of Canada and those certain proceedings seeking extradition of the said Oliver L. Vardy in respect of said Informations and all depositions, affidavits, sworn statements and other matters made, taken, obtained and sworn to in respect of the proceedings above set forth be stayed, and further to declare with respect thereto that all proceedings, affidavits, depositions and sworn statements taken, made and sworn to in respect to the aforesaid extradition proceedings are null and void, and further to issue a Writ of
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Mandamus commanding that all such proceedings, affidavits, depositions, and sworn statements be withdrawn from usage, withheld and returned to the Magistrate’s jurisdiction unless and until such time as the said Respondents shall fully comply with the laws of Canada and the Province of Newfoundland made and provided in respect to the carrying on, making, taking and swearing of the same.
In effect, the appellant in the notice of motion asked for three types of relief: (1) a stay of proceedings (on the charges and on the extradition); (2) a declaration that the depositions were null and void; and (3) an order for the return of the documents to the Magistrate’s jurisdiction. The notice of motion was directed to Magistrate Clement Scott, to the Director of Public Prosecutions, Mr. Connors, and to the Attorney General of Newfoundland, Mr. Hickman. On the return of the motion before Chief Justice Furlong of the Supreme Court of Newfoundland, counsel for the respondents Hickman and Scott, and Mr. Connors in person, raised the point, by way of preliminary objection, that mandamus would not lie against the respondents. Chief Justice Furlong sustained the preliminary objection and dismissed the mandamus application. Chief Justice Furlong’s judgment was confirmed on appeal by the Supreme Court of Newfoundland sitting in banco. An appeal to this Court was then taken pursuant to s. 36(b) of the Supreme Court Act (since repealed by 1974 (Can.), c. 18, s. 3) which gave an appeal as of right from a final judgment in mandamus.
Before this Court, the relief asked by the appellant Vardy differed radically from that asked in the lower courts. The order he seeks reads as follows:
(a) That the Respondents or either of them be ordered to recall the said depositions and/or to inform the Minister of Justice for Canada that the said depositions were not taken in accordance with the laws of Canada.
(b) That the Respondents or either of them be ordered to allow Counsel for the Appellant the right to cross-examine on any depositions taken or to be taken under Section 31 of the Extradition Act in relation to the said requisition for extradition of the Appellant.
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Paragraph (a) is new. The Minister of Justice of Canada is not and has never been a party to the proceedings and counsel for Vardy conceded during argument that mandamus would not lie against the Minister in the present proceedings. At the conclusion of argument counsel said that what he was actually seeking was an order directed to Magistrate Scott to require cross-examination on the depositions which have been taken. A request in this form releases Mr. Hickman and Mr. Connors from the proceedings. The request is silent on the matter of the 24 depositions taken before Magistrate O’Neill, not a party to these proceedings.
The first observation which might be made is that none of the three forms of relief sought in the notice of motion is related to a specific public duty owed by any of the three respondents. Before mandamus can issue there must be a duty, without discretion, upon the person or body against whom the order is directed to do the very thing ordered. Here the request made on behalf of the appellant leaves in obscurity the source of the right to be enforced, a fortiori the duty, which would require the magistrate to order the return of the depositions from the United States courts. The request pays scant heed to the substantial body of jurisprudence which holds that mandamus will not lie to undo that which has already been done in contravention of statute. In short, it sits strangely in the context of mandamus jurisprudence.
One must, however, examine carefully s. 31 of the Extradition Act, quoted earlier, to determine whether it gives the appellant the right he asserts. Counsel rests his entire case on the submission that the effect of s. 31(1), in particular the words “… any justice of the peace… may take depositions in the absence of a person accused of an extradition crime in like manner as he might take the depositions if the accused person were present and charged before him with such extradition crime” is such as to import into the Extradition Act s. 468 of the Criminal Code, or at least that portion of s. 468 which gives a right of cross-examination to the accused or his counsel. Section 468 reads in part:
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468. (1) Where the accused is before a justice holding a preliminary inquiry, the justice shall
(a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross‑examine them; and
(b) cause a record of the evidence of each witness to be taken
(i) by a stenographer appointed by him, or in legible writing, in the form of a deposition, in Form 27, or
(ii) in a province where a sound recording apparatus is authorized by or under provincial legislation for use in civil cases, by the type of apparatus so authorized and in accordance with the requirements of the provincial legislation.
(2) Where a deposition is taken down in writing, the justice shall, in the presence of the accused, before asking the accused if he wishes to call witnesses,
(a) cause the deposition to be read to the witness,
(b) cause the deposition to be signed by the witness, and
(c) sign the deposition himself.
(3) Where depositions are taken down in writing the justice may sign
(a) at the end of each deposition, or
(b) at the end of several or all of the depositions in a manner that will indicate that his signature is intended to authenticate each deposition.
The appellant’s submission is unsupported by authority other than a broad general statement in Extradition To and From Canada (1961) by G. La Forest, at p. 95:
The Act makes provision for taking evidence to be used in extradition proceedings abroad. It authorizes every justice of the peace, or any person having authority to issue a warrant for the apprehension of persons accused of offences, to take depositions required for proceedings abroad in the absence of the accused, and to summon witnesses and require the production of documents for the purpose. The justice or other person may do this in the same manner as he would take depositions if the accused were present and charged before him of the crime. This imports into the proceedings section 453 of the Criminal Code. The depositions are therefore given on oath or affirmation and taken down in writing by a stenographer. These must then be signed and authenticated as provided in section 453. [Section 453 is the present s. 468]
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The author’s attention does not seem to have been directed to the exercise of a right of cross‑examination by an accused or his counsel, but rather to the more mechanical aspects of the process.
Counsel for the respondents urges that s. 31 (1) was placed in the Extradition Act for the purpose of protecting the Crown and not of giving rights to a fugitive accused. The sole object, it is urged, is to permit witnesses to be heard and depositions to be taken in the absence of the accused in derogation of the right of an accused, enshrined in common law and statute, to face his accusers. This submission has considerable force. The primary purpose of the subsection is clearly as respondent’s counsel contends. In accepting this proposition, however, one must be careful to give some effect to the concluding words of the subsection, beginning with “in like manner”.
If s. 31(1) of the Extradition Act imports s. 468 of the Criminal Code, as is contended, it is obvious that it cannot import all of s. 468. That section requires that the evidence of prosecution witnesses be heard “in the presence of the accused”. If the accused were present there would be no need for extradition proceedings. Similarly, if s. 31 imports a right of cross‑examination because of s. 468, the right must be one exercisable only by counsel for the accused and never by the accused in person. Again, one cannot import s. 468(2) of the Code to the extent that it requires the reading and signing of depositions “in the presence of the accused”. The matter of “asking the accused if he wishes to call witnesses”, more particularly spelled out in s. 469, is equally out of place. So that when one carves out of s. 468 those parts which are clearly inapposite because of the absence of the accused, and when one qualifies even the alleged right of cross-examination by limiting its exercise to counsel, and not the accused, the result is incongruous. It compels the conclusion that s. 31 imports, at most, the mechanical aspects of deposition-taking alluded to in s. 468. While the presence of the accused is central and indispensable to a preliminary hearing, absurdities result when one tries to adapt the procedures of a preliminary hearing to a
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proceeding in which the accused is absent by choice.
In In re Collins at p. 445, an extradition case, Duff J., as he then was, endorsed the view that “…the technicalities of the criminal practice should not be allowed to smother or encumber the administration of the procedure prescribed by these modern statutes …”. Duff J. quoted with approval the language of Mr. Justice Brown, delivering the judgment of the Supreme Court of the United States in Grin v. Shine at p. 184 “… proceedings for a surrender are not such as put in issue the life or liberty of the accused. They simply demand of him that he shall do what all good citizens are required and ought to be willing to do, viz: submit themselves to the laws of their country”.
The proceedings at the extradition hearing are not such as to jeopardize the liberty of the accused, nor does the taking of depositions preparatory to an extradition hearing. At an extradition hearing in Canada the fugitive is brought before a judge. Section 13 of the Extradition Act applies. It reads:
13. The fugitive shall be brought before a judge, who shall, subject to this Part, hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.
There are two significant points of difference between s. 13 and s. 31(1): First, the use of “shall” in s. 13 and “may” in s. 31, and, second, the presence in s. 13 of the words “… judge… shall… hear the case …”, which enjoins all the concomitants of a hearing whereas s. 31(1) does not.
Section 16 of the Extradition Act provides for the admission of deposition evidence in extradition hearings in Canada. In Re State of Wisconsin and Armstrong, the Federal Court of Appeal was called upon to consider whether a fugitive criminal
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was denied due process and a fair hearing if he were not afforded an opportunity for cross‑examination upon the affidavit evidence at the actual extradition hearing. A unanimous court rejected the fugitive Armstrong’s appeal. Mr. Justice Thurlow, with whom Mr. Justice Cameron concurred, used these words in reference to the nature of an extradition hearing (at pp. 276-77 C.C.C., at p. 443 F.C.)
If the proceedings were in the nature of a trial on the subject of guilt or innocence the absence of a right or opportunity to test the evidence of the applicants by cross‑examination might well be a serious objection to the fairness and justice of such a rule, but, as already pointed out, that is not the situation. The hearing is a mere inquiry and what the extradition Judge has to determine is not the guilt or innocence of the fugitive but the question whether the evidence produced would justify his committal for trial. The fugitive is entitled to be made aware, by the reading of the affidavits presented, of the case against him, upon which his extradition for trial may be ordered, but he is not required to answer that case and even if he elects to do so, by evidence or otherwise, the Judge’s function remains the same. He is not empowered to decide the merits of guilt or innocence, or to pass upon the credibility of witnesses but simply to determine whether there is a sufficient case against the fugitive to justify his committal. The trial and determination of the fugitive’s rights with respect to the charge are left to the trial Court.
The foregoing observations apply with even greater force to proceedings antecedent to the extradition hearing. The stage of gathering deposition evidence is further removed from a determination of guilt or innocence than the process in Armstrong.
The duty, and authority, reposed in the magistrate by s. 31(1) is simply to “take depositions”. He is required to take the evidence of the witness under oath, to cause the deposition to be read to, and signed by, the witness, and to sign the deposition himself. That is all. He is not presiding at a hearing, nor is he determining any issue of law or fact. Depositions are not taken for use at the trial of an accused but merely for use at an extradition inquiry which antedates a possible preliminary
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inquiry. This last-mentioned procedure in turn precedes a trial at which guilt or innocence is decided.
A further consideration in determining the scope of s. 31(1) lies in the effectiveness of the right claimed. If the submission on behalf of Vardy is valid, the Extradition Act would become ineffective as a means of extraditing fugitive criminals, for if a fugitive has a right of cross‑examination of witnesses giving evidence by way of deposition, he should be afforded an opportunity for the effective exercise of that right. This would require, minimally, that the fugitive be given notice, that he be permitted to retain counsel, and that he be advised, personally or through counsel, of the time and place when each deposition is to be taken. If there is a genuine right of cross-examination imported into the Extradition Act from s. 468 of the Code, it would not do to leave the exercise of the right to chance, available only if the accused or his counsel happened to learn fortuitously that a deposition was to be taken at a certain time and place. When one recalls the parts of the world in which fugitive criminals may seek refuge, the language and other difficulties in communicating with authorities in those countries, and the complicated legal-diplomatic lines of communication in extradition matters, it is obvious that a right to notice would frustrate or defeat the entire extradition process.
Appellant would import into a pre-trial, and indeed pre-inquiry, procedure most of the panoply and trappings of a criminal trial—and all of this in respect of proceedings in which time may be of the essence.
Counsel for the appellant in his factum referred to s. 2(e) of the Canadian Bill of Rights but the point was not even faintly pressed during the oral argument on appeal.
For the foregoing reasons I do not believe that s. 31(1) should receive the construction for which the appellant contends. In my opinion the magistrate was authorized to take depositions in the absence of the accused appellant and the accused appellant had no right to be present by counsel or to cross-examine.
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Before leaving the case there are two other matters to which I would briefly refer, both of which were raised from the bench during the argument on the appeal.
First, whether on the facts of the case, it could be said that the magistrates had, in fact, taken “depositions”. It appeared from the affidavit of one William Alexander MacPherson, filed in support of the motion, that MacPherson was questioned by a constable of the Royal Canadian Mounted Police who wrote out his version of the interview which MacPherson signed. Some months later MacPherson was given a finished typed document to sign as his deposition, the contents of which came from MacPherson’s original statement and the minutes of a meeting of a Board of Directors at which MacPherson was present. One DeSantis completed an affidavit in which he said that the procedure adopted for the taking of the depositions had not been that of questions and answers; rather he had been asked to sign a written statement which had been prepared in advance. Mr. Isaac Mercer, counsel for the appellant in the earlier proceedings, swore that Goodson had been handed a document consisting of 15 to 20 pages and informed that the magistrate was going to read the document, leaving it to Goodson to make any corrections found necessary. Very few corrections or alterations were made. I do not think these alleged facts support the view that there were no depositions taken. A deposition is nothing more than a statement on oath in a judicial proceeding, taken down in writing and sworn before a justice. Form 27 referred to in s. 468(1)(b)(i) of the Code merely says “XY having been duly sworn, deposes as follows: (insert deposition as nearly as possible in words of witness)”.
Second, a question was raised as to the jurisdiction of the Newfoundland courts to hear the application for a writ of mandamus, since the respondents were purporting to act in accordance with s. 31 of the Extradition Act. By s. 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, the Trial Division of the Federal Court has exclusive original jurisdiction to issue a writ of
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mandamus against “any federal board, commission or other tribunal”. Section 2 (g) of the Act defines that phrase as follows:
“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.
Clearly a magistrate or justice of the peace taking depositions under s. 31 of the Extradition Act is a person exercising powers conferred by an Act of the Parliament of Canada. The question is whether he or she is excluded from the definition by the proviso dealing with provincial appointments.
The apparently broad words of s. 2 (g) have been interpreted to confer jurisdiction on the Federal Court in cases involving County Court judges who sit as extradition judges (Commonwealth of Puerto Rico v. Hernandez) and those who exercise powers under the Indian Act (Lavell v. A.-G. Can.). Although County Court judges are appointed under s. 96 of the British North America Act, it has been held that they fall within the scope of s. 2 (g) when they sit as persona designata.
A magistrate taking depositions under the Extradition Act performs a function different from that of an extradition judge. He performs a simple administrative task similar to his role when hearing evidence in a preliminary inquiry. In contrast, an extradition judge is involved in decision-making, performing a task integral to the comprehensive extradition scheme created by statute and treaty. Thus, there would appear to be more reason to regard an extradition judge as a persona designata and thus a “federal board” subject to
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Federal Court supervision. The magistrate, appointed under a law of a province and exercising only peripheral powers under the Extradition Act, analogous to his usual judicial duties, remains subject to the supervisory jurisdiction of provincial superior courts.
I would accordingly dismiss the appeal.
Appeal dismissed, LASKIN C.J. and SPENCE J. dissenting in part.
Solicitor for the appellant: Isaac Mercer, St. Johns.
Solicitor for the respondents: James J. Greene, St. Johns.
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