Canada v. Schmidt

Canada v. Schmidt
Collection
Supreme Court Judgments
Date
1987-05-14
Report
[1987] 1 SCR 500
Case number
18343
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Appeal
Constitutional law
Criminal law
Notes
SCC Case Information: 18343
Decision Content
Canada v. Schmidt, [1987] 1 S.C.R. 500
Helen Susan Schmidt Appellant
v.
Her Majesty The Queen in Right of Canada, the United States of America and the Attorney General for Ontario Respondents
indexed as: canada v. schmidt
File No.: 18343.
1985: December 18; 1987: May 14.
Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Appeal ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Extradition ‑‑ Habeas corpus ‑‑ Whether Supreme Court of Canada has jurisdiction to entertain an appeal from habeas corpus proceedings in extradition matters ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 719(5) ‑‑ Supreme Court Act, R.S.C. 1970, c. S‑19, s. 40.
Constitutional law ‑‑ Charter of Rights ‑‑ Application of Charter ‑‑ Double jeopardy ‑‑ Extradition ‑‑ Appellant fleeing to Canada after acquittal on American federal charge of kidnapping but prior to her trial on state charge of child stealing arising out of the same transaction ‑‑ Whether Charter applicable to the actions of a foreign country ‑‑ Whether s. 11(h) of the Charter applicable to an extradition hearing ‑‑ Canadian Charter of Rights and Freedoms, ss. 11 (h), 32 .
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Extradition ‑‑ Appellant fleeing to Canada after acquittal on American federal charge of kidnapping but prior to her trial on state charge of child stealing arising out of the same transaction ‑‑ Whether the surrender of the fugitive to foreign country violates s. 7 of the Charter .
Extradition ‑‑ Jurisdiction of extradition judges ‑‑ Autrefois acquit defence raised at the extradition hearing ‑‑ Whether extradition judge has jurisdiction to deal with defences that could be raised at trial.
Appellant, a Canadian citizen, resists extradition to the United States on a charge of child stealing contrary to Ohio law on the ground that she was acquitted in respect of the charge of kidnapping for the same offence under federal U.S. law. She claims that it violated her rights under ss. 7 and 11 (h) of the Canadian Charter of Rights and Freedoms as well as the provisions of the extradition treaty between Canada and the United States. The defence was rejected by the extradition judge, the judge who reviewed the case on habeas corpus and the Ontario Court of Appeal.
Held: The appeal should be dismissed.
(1) The Jurisdictional Issue
This Court has jurisdiction to hear this appeal pursuant to s. 719(5) of the Criminal Code . Having regard to the history of the section, it is clear that it was intended to give to the courts of appeal and to this Court a right of appeal in habeas corpus proceedings, including proceedings upon a writ of habeas corpus arising out of a claim for extradition. In enacting this provision, Parliament obviously overlooked s. 40 of the Supreme Court Act . It must, however, be taken to have been superseded by s. 719 . To the extent that there is a conflict between s. 40 of the Supreme Court Act and s. 719 of the Code, then, s. 40 has been impliedly repealed.
Cases Cited
Considered: Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385; Re Meier and The Queen (1983), 8 C.C.C. (3d) 210; not followed: Re Lazier (1899), 29 S.C.R. 630; Gaynor and Greene v. United States of America (1905), 36 S.C.R. 247; referred to: Re Low (1932), 41 O.W.N. 468; Ecrement v. Séguin (1921), 39 C.C.C. 113; Re Storgoff, [1945] S.C.R. 526; Re Wattebled (1952), 106 C.C.C. 200; Re Johnston and Shane (1959), 18 D.L.R. (2d) 102.
(2) The Extradition and Charter Issues
Per Dickson C.J. and Beetz, McIntyre, Le Dain and La Forest JJ.: An extradition hearing is not a trial. It is simply a hearing to determine whether there is sufficient evidence of an alleged extradition crime to warrant the Government under its treaty obligations to surrender a fugitive to a foreign country for trial by the authorities there for an offence committed within its jurisdiction. Thus, the judge at an extradition hearing has no jurisdiction to deal with defences that could be raised at trial unless, of course, the Act or the treaty otherwise provides. Here, article 4(1)(i) of the extradition treaty between Canada and the United States expressly provides that extradition shall not be granted "When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested". If the parties had considered that double jeopardy in the requesting state should be a valid defence at an extradition hearing, the treaty would have referred to it since the parties evidently adverted to the issue.
Section 11 (h) of the Charter does not apply to an extradition hearing. There can be no doubt that the actions undertaken by the Government of Canada in extradition as in other matters are subject to scrutiny under the Charter (s. 32 ). But the Charter does not govern the actions of a foreign country. In particular the Charter cannot be given extraterritorial effect to govern how criminal proceedings in a foreign country are to be conducted. Section 11 relates to charges laid by the governments referred to in s. 32 of the Charter . An extradition hearing does not fall within that description.
It does not follow that the Charter has no application to extradition. While the general extradition procedure constitutes a reasonable limit, under s. 1 of the Charter , on the right not to be surrendered for trial, that a fugitive may have the manner in which the procedures are conducted in Canada and the conditions under which a fugitive is surrendered can invite Charter scrutiny. The pre‑eminence of the Constitution must be recognized; the treaty, the extradition hearing in this country and the exercise of the executive discretion to surrender a fugitive must all conform to the requirements of the Charter , including the principles of fundamental justice.
Generally, there is nothing unjust in surrendering to a foreign country a person accused of having committed a crime there for trial in accordance with the ordinary procedures prevailing in that country, even though those procedures may not meet the specific constitutional requirements for trial in this country. But the courts may intervene if the executive's decision to surrender a fugitive would, in the particular circumstances of a case, violate the principles of fundamental justice. This is, however, a jurisdiction that must be exercised with caution. The discretion to make the decision to surrender is primarily that of the executive and this is an area where it is likely to be far better informed than the courts, and where the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. In a word, judicial intervention must be limited to cases of real substance. Finally, barring obvious or urgent circumstances, the courts should not ordinarily intervene before the executive has made an order of surrender.
In the case at bar, the surrender of the appellant did not constitute a breach of s. 7 of the Charter . The attempt by state authorities to enforce their own laws did not violate the principles of fundamental justice by reason only that the federal authorities, in attempting to enforce their laws, prosecuted her for an offence bearing some similarity to that for which the state prosecution was initiated. The two offences contain different elements, and different interests were involved with different prosecutorial authorities following their own paths. Therefore, there was nothing sufficiently oppressive in this situation to warrant refusing surrender on the basis that such prosecution, ipso facto, violates the principles of fundamental justice.
Per Lamer J.: The Charter does not govern the actions of a foreign country and, in particular, cannot govern how criminal proceedings in a foreign country are to be conducted. Therefore, the Charter should not, save special circumstances, be given extraterritorial effect by refusing to conduct a hearing or surrender a person on the grounds that the prospective trial in the foreign country would be in violation of its provisions. But the Charter does apply to the extradition proceedings taking place in Canada. These proceedings are in the nature of a preliminary inquiry and there is no reason why a person undergoing such an inquiry for the purpose of determining whether there is sufficient evidence to put that person on trial in a foreign country should be denied the protection that would be afforded that same person at his preliminary inquiry for a charge to be tried in a Canadian court. Thus, ss. 7 to 14 of the Charter are applicable to these proceedings in so far as they would apply to a preliminary inquiry.
The plea of autrefois acquit, whether raised under s. 11 (h) or s. 7, is premature at the stage of the preliminary inquiry and should generally be raised at the trial. But this plea could be raised at the extradition hearing when the foreign country where the trial is to take place does not allow it, as in this case, between federal and state prosecutions. Here, however, appellant's plea of autrefois acquit could not succeed because the two offences involve quite different elements.
Per Wilson J.: A Canadian citizen who is the subject of extradition proceedings in Canada is entitled to the benefit of the Charter in those proceedings. Charter rights are enshrined in our Constitution as part of the supreme law of Canada and must be recognized and given effect in any judicial proceeding in Canada unless a reasonable limit justified under s. 1 has been imposed upon them. Although the recognition of Charter rights in the extradition proceedings in Canada may have repercussions abroad, it does not give extraterritorial effect to the Charter and does not constitute an interference with the processes of the foreign court. In the present case, appellant was entitled to plead ss. 7 and 11 (h) as a defence to the extradition court's grant of an order committing her to prison to await the decision of the executive branch of government whether or not to surrender. But she failed to demonstrate that the federal and the state offences were the same offence, and thus failed to establish that her Charter rights would have been violated if the order sought by the respondents was made.
Cases Cited
By La Forest J.
Referred to: Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385; Bartkus v. Illinois, 359 U.S. 121 (1959); Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Re Burley (1865), 1 C.L.J. 34; Atkinson v. United States of America Government, [1971] A.C. 197; Re Windsor (1865), 6 B. & S. 522, 122 E.R. 1288; Re Collins (No. 3) (1905), 10 C.C.C. 80; Spencer v. The Queen, [1985] 2 S.C.R. 278; R. v. Heit (1984), 11 C.C.C. (3d) 97; Re Ryan, 360 F. Supp. 270 (1973); Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Altun v. Germany (1983), 5 E.H.R.R. 611; Holmes v. Laird, 459 F.2d 1211 (D.C. Cir. 1972), certiorari denied 409 U.S. 869; Gallina v. Fraser, 177 F. Supp. 856 (D. Conn. 1959), aff'd 278 F.2d 77 (2d Cir. 1960), certiorari denied 364 U.S. 851; Neely v. Henkel (No. 1), 180 U.S. 109 (1901); Re Arton, [1896] 1 Q.B. 108; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; R. v. Chiasson (1982), 135 D.L.R. (3d) 499 (N.B.C.A.), aff'd [1984] 1 S.C.R. 266; United States v. Lanza, 260 U.S. 377 (1922); Abbate v. United States, 359 U.S. 187 (1959).
By Lamer J.
Referred to: R. v. Prince, [1986] 2 S.C.R. 480.
By Wilson J.
Referred to: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385; R. v. Prince, [1986] 2 S.C.R. 480.
Statutes and Regulations Cited
18 United States Code, s. 1201.
Canadian Charter of Rights and Freedoms, ss. 1 , 6 , 7 , 8 , 9 , 10 , 11 (d), (e), (f), (h), 12 , 13 , 14 , 15 , 32 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 535, 719(5) [previously s. 691 (en. 1964‑65, c. 53)].
Extradition Act, R.S.C. 1970, c. E‑21, ss. 3, 13, 18.
Extradition Act, 1870 (U.K.), 33 & 34 Vict., c. 52.
Extradition Agreement Between Canada and Israel, March 10, 1967, Can. T.S. 1969 No. 25, art. 4.
Extradition Treaty Between Canada and the United States of America, December 3, 1971, Can. T.S. 1976 No. 3, art. 2, 4(1)(i), 8.
Ohio Rev. Code Ann., s. 2905.04.
Supreme Court Act, R.S.C. 1952, c. 259, ss. 57, 58.
Supreme Court Act, R.S.C. 1970, c. S‑19, s. 40 [am. 1974‑75‑76, c. 18, s. 4].
Authors Cited
Clarke, Sir Edward. A Treatise Upon the Law of Extradition, 4th ed. London: Stevens & Haynes, 1903.
La Forest, Gérard Vincent. Extradition To and From Canada, 2nd ed. Toronto: Canada Law Book, 1977.
APPEAL from a judgment of the Ontario Court of Appeal (1984), 44 O.R. (2d) 777, 7 D.L.R. (4th) 95, 10 C.C.C. (3d) 564, 2 O.A.C. 336, dismissing appellant's appeal from an order of Steele J. (1983), 41 O.R. (2d) 399, 147 D.L.R. (3d) 616, 4 C.C.C. (3d) 409, 4 C.R.R. 323, dismissing her application for habeas corpus. Appeal dismissed.
Jack L. Pinkofsky and Stephen Kwinter, for the appellant.
Douglas J. A. Rutherford, Q.C., and Michael C. Blanchflower, for the respondents.
The judgment of Dickson C.J. and Beetz, McIntyre, Le Dain and La Forest JJ. was delivered by
1. La Forest J.‑‑The appellant, Helen Susan Schmidt, resists extradition to the United States on a charge of child stealing contrary to the law of the State of Ohio on the ground that she was acquitted in respect of the same activity of a charge of kidnapping under federal law of the United States. This she claims violates her rights under ss. 7 and 11 (h) of the Canadian Charter of Rights and Freedoms as well as the provisions of the Canada‑United States extradition treaty; see Canada Treaty Series 1976, No. 3. This defence was rejected by the extradition judge, the judge who reviewed the case on habeas corpus and the Ontario Court of Appeal. From the latter judgment, she was given leave to appeal to this Court.
Facts
2. On August 28, 1980, Schmidt, with the assistance of her son, Charles Gress, and a friend of his, Paul Hildebrand, is alleged to have abducted a two‑year old girl, Denise Gravely, from a Cleveland sidewalk. Schmidt took the child with her to New York State, where she kept her for almost two years, raising her as her daughter. In the interim, the child's father committed suicide, allegedly as a result of his inability to discover his child's whereabouts.
3. On March 22, 1982, Schmidt attended a family reunion in Buffalo, New York, accompanied by Denise. Another son of hers, Donald Gress, was also at the reunion. By sheer coincidence, Donald Gress not only came from Cleveland but knew the child's parents and had helped to search for her after her abduction. Following the reunion, he told Cleveland police of Denise's whereabouts and she was returned to her mother on March 26, 1982.
4. Following her arrest, Schmidt was charged with the federal offence of kidnapping and the state offence of child‑stealing. Grand juries returned indictments on both charges, on March 29, 1982 on the state charge and on March 31, 1982 on the federal charge.
5. The two charges have some similarities but they also have important differences. The federal offence under the United States Code, Title 18 reads:
§ 1201. Kidnapping
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when:
(1) the person is willfully transported in interstate or foreign commerce;
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;
(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 101(36) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1301(36)); or
(4) the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title,
shall be punished by imprisonment for any term of years or for life.
The offence under the Revised Code of Ohio reads:
§ 2905.04‑‑Child Stealing
(A) No person, by any means, and with purpose to withhold a child under the age of fourteen or mentally incompetent from the legal custody of his parent, guardian or custodian, shall remove such child from the place where he is found.
(B) It is an affirmative defense to a charge under this section that the actor reasonably believed that his conduct was necessary to preserve the child's health or welfare.
6. On July 26, 1982, Schmidt was tried on the federal charge by a judge and jury. She admitted the abduction, but contended that she had taken part in it in the belief that Denise was the illegitimate daughter of her son Donald Gress, and that she had been abandoned by her father and was living with her natural mother "in a home of ill repute". On July 30, 1982, the jury found Schmidt not guilty and she was acquitted.
7. On August 6, 1982, while the state offence of child‑stealing was still pending, Schmidt, who is a Canadian citizen, left the United States and came to Canada. She was arrested in Kirkland Lake, Ontario on August 30, 1982 and extradition proceedings against her were begun pursuant to the Canada‑United States extradition treaty.
8. I should add that Schmidt's counsel argues that if Schmidt is returned to Ohio, she will not have the benefit of raising her previous federal prosecution in bar of her prosecution under state law. While under the Fifth Amendment of the Constitution of the United States, a person is protected from double jeopardy against federal prosecutions, that provision does not apply to the states although at some point the cruelty of harassment by multiple prosecutions by a state would violate the due process clause of the Fourteenth Amendment: see Bartkus v. Illinois, 359 U.S. 121 (1959). It is clear, however, that the Fourteenth Amendment does not automatically protect an individual from being prosecuted under a state law although the accused was earlier tried and acquitted of an offence under federal law. Thus in Bartkus v. Illinois, supra, the accused was tried and acquitted under a federal law of robbing a federally insured bank. He was later tried and convicted on substantially the same evidence in an Illinois state court for violating an Illinois robbery statute. On an action to test the constitutionality of the second prosecution, the Supreme Court of the United States held that the Illinois prosecution did not violate the due process clause.
The Courts Below
9. At the extradition hearing, Collins Dist. Ct. J., having found that the requirements of the Extradition Act, R.S.C. 1970, c. E‑21, had been met, considered whether s. 11 (h) of the Charter would be violated by an order committing Schmidt to prison to await the Government's decision on the request for her surrender. He held, however, that the Charter only applied within the boundaries of Canada. He also noted that it had already been held in Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385 (Ont. C.A.) that the extradition process itself was a reasonable limit on the rights and freedoms guaranteed by the Charter . Finally, he refused to consider the common law plea of autrefois acquit or the American doctrine of double jeopardy on the ground that they were not within the scope of his jurisdiction as an extradition judge. Accordingly, he ordered Schmidt's committal for surrender to the United States.
10. In a proceeding on a writ of habeas corpus with certiorari in aid before Steele J. (1983), 41 O.R. (2d) 399, 147 D.L.R. (3d) 616, 4 C.C.C. (3d) 409, 4 C.R.R. 323, Schmidt's principal argument was that she should not have been committed because such committal violated the principle of autrefois acquit, either under the Charter or at common law.
11. Steele J. held that at common law and under the Extradition Act, Schmidt was not entitled to plead autrefois acquit. Section 3 of the Act, he noted, incorporates the extradition treaty, article 2 of which provides that extradition is to be ordered for certain named offences that are offences in both the requesting and the requested State. He pointed out that no defences are provided for. In his opinion, the fact that a defence might be raised to a charge in Canada is not a valid reason for refusing extradition. Indeed, since article 4(1)(i) of the treaty provides that extradition is not to be ordered where a fugitive has been previously tried in the requested state, the raising of autrefois acquit or convict where the fugitive has been tried in the requesting state is implicitly ruled out. In any event, federal and state charges in this case differed from one another and the defence, therefore, had no application.
12. As to the Charter , Rauca, supra, having already determined that extradition was a reasonable infringement on the right to remain in Canada, any argument that specific aspects of extradition are contrary to the Charter were, in Steele J.'s opinion, ruled out. "[I]f the Extradition Act is a proper infringement upon the rights of the individual to remain in Canada, then I do not see how the details of whatever rights there may be within the Extradition Act can be overridden by the provisions of the Charter ."
13. Finally, he held that because an extradition judge has the same powers as a magistrate on a preliminary inquiry, autrefois acquit, as a defence on the merits, could only be raised at trial, and consequently could not properly be raised before an extradition judge any more than before a magistrate on a preliminary inquiry.
14. In the Ontario Court of Appeal (1984), 44 O.R. (2d) 777, 7 D.L.R. (4th) 95, 10 C.C.C. (3d) 564, 2 O.A.C. 336, Lacourcière J.A. held that the statutory plea of autrefois acquit under s. 535 of the Criminal Code was not available at an extradition hearing. Under s. 13 of the Extradition Act, the extradition judge has the same powers as a justice at a preliminary inquiry. The powers of a justice under Part XV of the Code are statutory, and do not include the authority to entertain special pleas. The special plea of autrefois acquit could only be raised on arraignment for an indictable offence under Part XVII of the Code and not at a preliminary inquiry or an extradition hearing. Nor, he held, could a common law plea in the nature of res judicata or issue estoppel be raised. Such pleas are defences on the merits, also to be dealt with at trial.
15. Lacourcière J.A. held that it was possible that article 8 of the treaty, which acknowledged the right of a fugitive to all remedies and recourses provided by the law of the requested state, permitted the raising of a Charter issue. However, he did not find it necessary to decide the point since in his view, the federal and state offences in this case were not the same, and Schmidt therefore had not been acquitted of "the offence" as required by s. 11 (h) of the Charter .
16. The appeal was, therefore, dismissed. Leave was then granted to appeal to this Court, [1984] 1 S.C.R. xiii.
Jurisdiction of this Court
17. Before addressing the substantive issues raised by the appellant, it is first necessary to consider an issue raised by the respondent, namely, whether this Court has jurisdiction to hear the appeal. This issue arises out of the fact that there is an apparent conflict between s. 40 of the Supreme Court Act, R.S.C. 1970, c. S‑19, as amended, and s. 719(5) of the Criminal Code, R.S.C. 1970, c. C‑34.
18. Taken by itself, s. 40 of the Supreme Court Act makes it clear that no appeal lies in habeas corpus proceedings in extradition matters. It reads:
40. No appeal to the Supreme Court lies under section 38 or 39 from a judgment in a criminal cause, in proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge, or in proceedings for or upon a writ of habeas corpus arising out of a claim for extradition made under a treaty. [Emphasis added.]
In Re Lazier (1899), 29 S.C.R. 630, this Court held that, by virtue of the forerunner of this provision, the Court lacked jurisdiction to entertain an appeal from habeas corpus proceedings in an extradition matter. As here, the attempted appeal was from a provincial court of appeal: see also Gaynor and Greene v. United States of America (1905), 36 S.C.R. 247, at p. 249.
19. In 1965, however, s. 719 of the Criminal Code was enacted (S.C. 1964‑65, c. 53). It provided for appeals from decisions in proceedings involving extraordinary remedies and, in particular, under s. 719(5) from a judgment in a habeas corpus proceeding to a provincial court of appeal and thence to this Court. Section 719(5) reads:
(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the Supreme Court of Canada, with the leave of that court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.
20. To understand the interrelationship of the two provisions, it is essential to examine their history. When the precursor of s. 40 was passed, Parliament was then guided by a general policy of preventing prolonged litigation in criminal matters by restricting appeals. For many years Parliament made no provision for appeals from habeas corpus proceedings to provincial courts of appeal, though appeals to the Supreme Court were, in some circumstances, possible (see Supreme Court Act, R.S.C. 1952, c. 259, ss. 57 and 58). The policy appears to have been particularly marked in relation to extradition matters; see Gaynor and Greene, supra, at p. 249, and the predecessors of s. 40 of the Supreme Court Act ensured that such appeals could not be entertained in the Supreme Court either.
21. There were instances, however, where provincial courts of appeal overlooked the fact that there was no provision for appeal from habeas corpus hearings in extradition matters; see, for example, in Ontario, Re Low (1932), 41 O.W.N. 468, and in Quebec, Ecrement v. Séguin (1921), 39 C.C.C. 113. In Re Storgoff, [1945] S.C.R. 526, however, this Court made it clear that there was no appeal to these courts from a decision on habeas corpus, but it was only later that this ruling was applied to extradition cases: see Re Wattebled (1952), 106 C.C.C. 200 (Que. C.A.); Re Johnston and Shane (1959), 18 D.L.R. (2d) 102 (Ont. C.A.)
22. Over the past several decades, however, Parliamentary attitude towards criminal appeals has changed, and such appeals have been provided on a much more extended basis. The right of the Crown to appeal against an acquittal is an example. More specifically, three years after the last mentioned case, Johnston and Shane, was decided, in November 1962 a Bill was introduced in the House of Commons to provide an appeal from habeas corpus proceedings. Provisions of this Bill, as amended, now appear in s. 719 of the Criminal Code . Given that the recent cases holding that there was no appeal from habeas corpus proceedings were extradition cases, and given that habeas corpus was the only means of reviewing extradition cases, it is reasonable to assume that appeals from judgments in habeas corpus in extradition cases were intended to be comprised in s. 719 .
23. This development was traced by the Ontario Court of Appeal in Re Federal Republic of Germany and Rauca, supra, which concluded its examination of this issue with the following passage, at p. 396:
Having regard to the history of the amendment of the Code, we think it is clear that s. 719 was intended to give a general right of appeal in habeas corpus proceedings, including proceedings upon a writ of habeas corpus arising out of a claim for extradition, and is not restricted to habeas corpus proceedings under the Criminal Code . We hold, therefore, that the appellant has the right to appeal to this court.
The Court of Appeal of British Columbia soon adopted this reasoning in Re Meier and The Queen (1983), 8 C.C.C. (3d) 210.
24. If one concludes that there is an appeal to a provincial court of appeal from habeas corpus in an extradition matter, one must equally conclude that a subsequent appeal may be brought to this Court because s. 719 creates an integrated scheme. In enacting this provision, Parliament obviously overlooked s. 40 of the Supreme Court Act . It must, however, be taken to have been superseded by the later provision. To the extent that there is conflict between s. 40 of the Supreme Court Act and s. 719 of the Code, then, s. 40 has been impliedly repealed. I should perhaps say that in dealing with this issue in my book Extradition To and From Canada (2nd ed. 1977), at pp. 131‑32, I did not advert to the intertwined judicial and legislative history of the two provisions.
25. I, therefore, hold that this Court has jurisdiction to hear this appeal.
The Non‑Charter Extradition Issues
26. I shall deal with the non‑Charter arguments on extradition before addressing the Charter issues. It may be useful at the outset, however, to recall precisely what extradition is. Extradition is the surrender by one state to another, on request, of persons accused or convicted of committing a crime in the state seeking the surrender. This is ordinarily done pursuant to a treaty or other arrangement between these states acting in their sovereign capacity and obviously engages their honour and good faith. A surrender under these treaties is primarily an executive act. Charter considerations and international implications apart, it is under domestic law in the discretion of the executive to surrender or not to surrender a fugitive requested by another state.
27. However, as Laskin J. (as he then was) noted in Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, at p. 245, 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.
28. The hearing thus protects the individual in this country from being surrendered for trial for a crime in a foreign country unless prima facie evidence is produced that he or she has done something there that would constitute a crime mentioned in the treaty if committed here. It must be emphasized that this hearing is not a trial and no attempt should be made to make it one. The trial, when held, will be in the foreign country according to its laws for an alleged crime committed there, and it should require no demonstration that such a prosecution is wholly within the competence of that country. A judge at an extradition hearing has no jurisdiction to deal with defences that could be raised at trial unless, of course, the Act or the treaty otherwise provides.
29. Counsel for Schmidt argued, however, that the principle of double jeopardy is so fundamental to our criminal law that in providing that an extradition hearing should be conducted "as nearly as may be" like a preliminary hearing, Parliament must have intended to import into the extradition hearing some way of presenting defences to prevent a person from being twice prosecuted for the same offence. That, however, would seem to me to import trial procedures into the hearing, an approach that is out of keeping with extradition law generally. In domestic law, such pleas can be made at trial. In extradition matters, too, these are issues that can be raised at the trial in the foreign country. In my view, the reference to a procedure that is the same "as nearly as may be" as a preliminary hearing is intended to accommodate the differences between the two types of proceedings, such as, for example, the provisions in the treaty and the Act for presenting evidence by depositions.
30. This conclusion is supportable both in principle and on practical grounds. In principle, as Hagarty J. long ago reminded us, the country seeking surrender under a treaty must be trusted with the trial of offences; see Re Burley (1865), 1 C.L.J. 34 (C.L. Ch.) It should not be forgotten either that the good faith of this country in honouring its international obligations is involved.
31. As well, an attempt by courts to consider defences more appropriately dealt with at trial could seriously affect the efficient working of a salutary system devised by states for the mutual surrender of suspected wrongdoers. In particular, a proper determination of pleas such as autrefois acquit and res judicata presents difficult problems requiring an in‑depth knowledge of facts and law that are best dealt with at trial. This is especially so in extradition matters where it is necessary to prove the foreign law as a fact if such defences are permitted, and where only sufficient facts are presented as are necessary to justify the committal of the fugitive.
32. That the parties to the present treaty must have looked at the situation in this way is apparent from a treaty provision upon which counsel for Schmidt relies. Article 4(1)(i) expressly provides that extradition shall not be granted "‑‑When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested" (emphasis added). If the parties had considered that double jeopardy in the requesting state should be a valid defence at an extradition hearing, one would have thought the treaty would have referred to it since the parties evidently adverted to the issue. The truth is that the parties obviously understood the practical difficulties of providing for such a defence at the hearing, leaving it, like other trial matters, to be dealt with in the requesting country. That is what is done under most of the treaties. When states wish to provide for a defence of autrefois acquit in circumstances where the fugitive has already been tried in the requesting state, or elsewhere for that matter, they expressly provide for it; see, for example, the extradition treaty with Israel, article 4, Canada Treaty Series 1969, No. 25. I do not, therefore, accept the dicta to the contrary expressed in Atkinson v. United States of America Government, [1971] A.C. 197. I might add that I see nothing in the principle set forth in article 2 of the treaty (that the offence concerned must be a crime in both countries) that affects the foregoing reasoning.
33. Finally, in the course of the oral argument counsel referred to the early English case of Re Windsor (1865), 6 B. & S. 522, 122 E.R. 1288 (K.B.), where it appears to have been thought that extradition could not be granted for state crimes in the United States but, as Duff J. said in Re Collins (No. 3) (1905), 10 C.C.C. 80 (B.C.S.C.), this view was based on a misconception of the division of legislative power in the United States and has never been followed.
Section 11 (h) of the Charter
34. The appellant's major arguments, however, relate to the Charter . Counsel submitted that the child stealing charge is substantially the same as the kidnapping charge and that consequently the appellant is protected from being tried under the child stealing charge under s. 11 (h) of the Charter , which reads as follows:
11. Any person charged with an offence has the right
...
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
35. There can be no doubt that the actions undertaken by the Government of Canada in extradition as in other matters are subject to scrutiny under the Charter (s. 32 ). Equally, though, there cannot be any doubt that the Charter does not govern the actions of a foreign country; see, for example, Spencer v. The Queen, [1985] 2 S.C.R. 278. In particular the Charter cannot be given extraterritorial effect to govern how criminal proceedings in a foreign country are to be conducted.
36. These propositions must, I think, be kept firmly in mind in examining the right protected by s. 11 (h). The right is that of a person charged with an offence not to be tried for the offence again if he or she has already been finally acquitted of the offence. The Government of Canada, to which the Charter applies, is not trying the fugitive. An extradition hearing, we saw, is not a trial. It is simply a hearing to determine whether there is sufficient evidence of an alleged extradition crime to warrant the Government under its treaty obligations to surrender a fugitive to a foreign country for trial by the authorities there for an offence committed within its jurisdiction. To repeat, s. 11 (h) was not intended to be given extraterritorial application so as to govern criminal processes in another country. It was intended to govern trials conducted by the governments of this country mentioned in s. 32 . Here no trial is being conducted by the Government of Canada. If a trial is to be held, it will be conducted by a foreign government in a foreign country for an offence under its laws.
37. Fundamentally, what the appellant seeks to do is to restructure the extradition hearing (which is simply one to determine a condition precedent to the executive's power to surrender, i.e., whether there is a prima facie case that an alleged extradition crime was committed) into a quite different proceeding to determine whether the foreign trial meets the standards of a trial conducted in this country. I agree with the extradition judge, Collins Dist. Ct. J., that he had no jurisdiction to do this.
38. This approach is supported by the whole structure of s. 11 . Not only is a fugitive at an extradition hearing not being charged with an offence, certainly not by the Government of Canada, several of the rights of a "person charged with an offence" can simply have no application to extradition. These include the right to be presumed innocent (s. 11 (d)) and the right to a jury trial (s. 11 (f)), both of which do not exist in a number of countries with which we have extradition treaties. How could Canada surrender fugitives to those countries to be tried there if such issues could be raised at an extradition hearing? Nor can these provisions be isolated. To say that some provisions of s. 11 apply to extradition hearings, while others do not, involves giving varying meanings to "any person charged with an offence" in the opening words of the section. In my view, Tallis J.A. was correct in saying in R. v.