McVey (Re); McVey v. United States of America

McVey (Re); McVey v. United States of America
Collection
Supreme Court Judgments
Date
1992-11-19
Report
[1992] 3 SCR 475
Case number
21331, 21751
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 21331, 21751
Decision Content
McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475
United States of America Appellant
v.
Charles McVey II, also known as Charles Julius McVey Respondent
and
United States of America Appellant
v.
Charles Julius McVey Respondent
Indexed as: McVey (Re); McVey v. United States of America
File Nos.: 21331, 21751.
1991: October 30; 1992: November 19.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for british columbia
Extradition ‑‑ Extradition hearing ‑‑ Whether "extradition crime" must be determined not only according to Canadian law but also according to law of requesting state ‑‑ Whether extradition judge must determine that the crime is listed according to the law of the requesting state ‑‑ Extradition Act, R.S.C. 1970, c. E‑21, s. 18(1).
The respondent was charged with conspiracy to export high‑technology equipment to the U.S.S.R. and with having made false statements to the U.S. Department of Commerce and the U.S. Customs Service to effect such export (File No. 21331). He was also indicted for knowingly and intentionally devising and participating in a scheme to defraud a computer corporation of its right to the exclusive use of its property regarding the design and operation of one of its computers (File No. 21751). The United States began extradition proceedings in Canada pursuant to the Canada‑U.S. Treaty (Can. T.S. 1976 No. 3). The extradition judge in each case ordered respondent committed for extradition. Applications were brought for habeas corpus, where respondent argued that the charges were not extraditable under American law. The application succeeded in the first case, and was upheld on appeal. In the second case, the chambers judge concluded that the offence was extraditable under American law, but the Court of Appeal overturned his decision. The respondent voluntarily left the country but, because of the importance of the issue raised and because respondent could arguably return to Canada, the appellant still sought the Court's decision on these cases.
The principal issue in these appeals was whether the offence for which extradition is sought must be established, before the extradition judge, as being listed in the Treaty not only according to Canadian but also according to U.S. law. A subsidiary issue arises if "double listing" is required: whether the Court of Appeal erred with respect to one of the indictments (File No. 21751) in concluding that the offence charged against the respondent was not listed in the Treaty according to the law of the United States.
Held (Lamer C.J. and Sopinka and McLachlin JJ.dissenting): The appeals should be allowed.
Per La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.
I
United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331
The Act and the Treaty jointly determine a scheme which governs this extradition proceeding. Under that scheme, the role of the extradition judge is limited, but important: he or she must determine whether a prima facie case exists that the conduct of the fugitive constitutes an "extradition crime" according to Canadian law. The Act and the Treaty do not assign to the judge the task of determining whether it also constitutes an extradition crime under foreign law. That is a matter for the American authorities, subject to being monitored by the Canadian executive in determining whether the requisition for surrender complies with the terms of the Treaty.
The principles and rules governing extradition must be found in the Extradition Act and treaties; abstract principles of extradition law do not have independent force. Our Act is modelled after the British statute, and as such the law and practice of that country is of persuasive value on the issue in this appeal.
In our Act, an "extradition crime" is any crime that, if committed in Canada, would be one of the crimes listed in the Act or relevant treaty. The Act does not require proof that the act charged is a crime under the foreign law; rather, s. 34 requires that the list of crimes be construed according to Canadian law. The crime as it is known in the foreign state is set forth in the information and warrant of arrest, and this leaves it up to the Canadian authorities, ordinarily the extradition judge, to identify the equivalent Canadian crime.
Section 15 of the Act recognizes the possibility that a treaty may restrict the term "extradition crime". But s. 15 only gives the extradition judge jurisdiction to receive evidence on the matter, which under s. 19(b) the judge must transmit to the Minister for consideration. It is not intended by the Act that the extradition judge monitor all the many and variegated conditions, qualifications and restrictions to which states, through their extradition treaties, have qualified their obligations to other states to surrender fugitive criminals. This could lead to endless delays in a procedure intended to be expeditious, and the courts should not reach out to bring within their jurisdictional ambit matters that the Act has not assigned to them. Barring statutory provision, the task of monitoring international treaty obligations is for the political authorities, a task performed by the Ministers and departments in the course of conducting their appropriate mandates. By statute this duty is assigned to the Minister of Justice.
Turning to the treaty at issue here, none of its terms is inconsistent with the Act's stipulations that the extradition judge should be concerned solely with Canadian law. Nothing in the Treaty requires proof of foreign law at the extradition hearing, and the isolated provisions that invoke the law of the requesting state are merely to assist the executive in its duty of ensuring that the requesting state has complied with the terms of the Treaty.
Although the function of the extradition hearing is a modest one, it is critical to the liberty of the individual. And there are other protections afforded the fugitive. The Treaty provides that the person surrendered shall only be detained and tried in the requesting country for the offence for which his or her surrender was made. The courts of both countries deal with the offence under their own law, the law in which they are versed, but each must ascertain whether under that law the facts support the charge. To require evidence of foreign law beyond the documents now supplied with the requisition could cripple the operation of extradition proceedings.
Canadian authorities on this issue have long been in a state of confusion, due in part to the early English practice of obtaining proof of foreign law in extradition hearings. It is now settled in England, however, that the extradition judge, absent statutory provision, is not concerned with foreign law at all. Consistent with the English authorities, recent cases in this Court also indicate that the sole question for the extradition judge is whether the conduct of the fugitive would, if committed here, constitute an extradition crime under Canadian law.
The provisions in this Treaty concerning the law of the requesting state, in particular Art. 2(1) requiring the crime to be punishable by at least a one year sentence under the law of both states, do not alter the role of the extradition judge. Article 2 does not deal with judicial hearings but with the duty of the executive to deliver the fugitive according to the provisions of the Treaty. Interpreting this provision as having some impact on the extradition hearing ignores the fact that treaties are contracts between sovereign states that, except to the extent that a treaty requires a change in the law of the land, are administered by the executive and its officials.
The evidence of American law in this case was not only irrelevant; it was also misplaced. The issue is not whether the crime charged is called forgery or not in either country, but whether the conduct charged can fairly be said to fall within the expressions "forgery" and "conspiracy" in the treaty. The crimes in the treaty are not to be interpreted according to the niceties of the applicable legislation in either country. Rather they are described in a comprehensive and generic sense: it is the essence of the offence that is important. If the American authorities proceeded on too broad a basis, the matter could be raised at the diplomatic level. However, it would lie ill in the mouth of Canada to say to the United States that the act charged in this case does not fall within the genus of forgery when in this country it falls within the definition of forgery under Canadian law.
II
United States of America v. Charles Julius McVey, File No. 21751
For the reasons noted above, the extradition judge in this second case need not have concerned himself with the question of whether the extradition crime was listed in the treaty according to the law of the United States. Once the appellant established a prima facie case of an extradition crime according to the law of Canada, the extradition judge was required to surrender the respondent under s. 18(1)(b) of the Extradition Act, read in conjunction with s. 2 (the definition of an "extradition crime") and s. 34. Given the protections available to the fugitive under the Act and the Treaty, there is no point to a review of foreign law by the extradition judge. It is not the business of that judge to assume responsibility for reviewing the decisions of the officials and judicial authorities in the foreign state.
Per Lamer C.J. and Sopinka and McLachlin JJ. (dissenting)
I & II
United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331 and United States of America v. Charles Julius McVey, File No. 21751
Under the Canada‑U.S. Treaty as it stood when these proceedings were commenced, the extradition judge must be satisfied that the offence for which extradition is sought is listed in the Schedule to the Treaty according to the law of the United States and of Canada.
The concept of an "extradition crime" is central to the task of the extradition judge. Under s. 18(1)(b) of the Act, the judge shall issue a warrant for committal where the evidence justifies, under Canadian law, the committal of a fugitive accused of an "extradition crime" as if the crime had been committed in Canada. This same standard of proof is provided for in Art. 10 of the Treaty. The extradition judge must receive any evidence tendered to show that the crime of which the fugitive is accused is an offence of a political character or is, for any other reason, not an extradition crime.
The combination of Arts. 1 and 2 of the treaty requires that the fugitive be charged with an offence in the United States that is listed in the schedule. If the same conduct amounts to different offences in the two countries, they must both be listed. This conclusion is confirmed by the interaction of Arts. 2 and 12. A fugitive cannot be prosecuted for any offence other than an offence listed in the Schedule. Since a fugitive extradited to the United States will only be prosecuted for offences against U.S. law, the offence which forms the basis of the extradition request must therefore be an offence listed in the Treaty according to U.S. law. The same reasoning applies where no treaty is relied on.
Article 8 of the Treaty, which provides that the determination that extradition should or should not be granted shall be made in accordance with the law of the requested state, does not preclude reference to the law of the requesting state. Proceedings can be conducted in accordance with Canadian law even though there is an issue as to what the law of the United States is on a particular point. Such a situation is not unique to the law of extradition.
A double listing requirement is consistent with both Art. 8 and the introductory words of the Canada‑United States Treaty. It ensures that Canada only extradites in situations where Canada could successfully request extradition if the same conduct had taken place here and the fugitive had fled to the United States.
Since an extradition crime here is one listed in the Schedule to the Treaty according to the laws of both Canada and the United States, the extradition judge must determine if this requirement has been met before issuing a warrant of committal under s. 18 of the Act. It is not for the requesting state to determine whether the act for which a fugitive is sought is a crime in the requesting state for which it may seek surrender under the treaty.
Although the extradition judge has a limited role, the concept of an "extradition crime" or a crime that falls within the appropriate treaty is central to his or her task. The extradition judge must determine that the double listing requirement is met. Section 15 of the Act requires the judge to receive evidence tendered to show that the crime of which the fugitive is accused is, for any reason, not an extradition crime.
Requiring determination of whether an offence is listed according to the requesting state's law would not unduly lengthen and unnecessarily complicate proceedings. Proof of foreign law is often a component of private law litigation and has not slowed such proceedings to a halt. Moreover in the majority of extradition cases, this issue will be uncontentious and will be resolved on the basis of the text of the provision under which the fugitive was charged or convicted and accompanying affidavits.
The issue in File No. 21751 was not whether the injured corporation was a member of the public but whether an accused could be convicted in the United States of using the telephone in connection with a scheme to defraud the public when the scheme was aimed at one corporation. No evidence was led on that issue which was an essential precondition to the issuance of a warrant under s. 18. The extradition judge was therefore without jurisdiction to issue the warrant.
Cases Cited
By La Forest J. (United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331)
Considered: Washington (State of) v. Johnson, [1988] 1 S.C.R. 327; R. v. Governor of Pentonville Prison, ex p. Sinclair, [1991] 2 A.C. 64; Government of Belgium v. Postlethwaite, [1987] 3 W.L.R. 365; In re Nielsen, [1984] A.C. 606; United States Government v. McCaffery, [1984] 2 All E.R. 570; Argentina v. Mellino, [1987] 1 S.C.R. 536; Canada v. Schmidt, [1987] 1 S.C.R. 500; Buck v. The King (1917), 55 S.C.R. 133; United States v. Rauscher, 119 U.S. 407 (1886); United States of America v. Cotroni, [1989] 1 S.C.R. 1469; In re Bellencontre, [1891] 2 Q.B. 122; In re Arton (No. 2), [1896] 1 Q.B. 509; referred to: United States v. Allard, [1991] 1 S.C.R. 861; R. v. Parisien, [1988] 1 S.C.R. 950; Re DeBaun (1888), 32 L.C. Jur. 281; R. v. Governor of Brixton Prison, ex p. Minervini, [1958] 3 All E.R. 318; Re United States of America and Smith (1984), 15 C.C.C. (3d) 16 (Ont. Co. Ct.), aff'd (1984), 16 C.C.C. (3d) 10 (Ont. H.C.); Re State of Wisconsin and Armstrong (1973), 10 C.C.C. (2d) 271; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Ex p. Piot (1883), 48 L.T. 120; Re Gross (1989), 2 C.C.C. 67; Ex parte Thomas (1917), 28 C.C.C. 396; Johnson v. Browne, 205 U.S. 309 (1907); United States v. Sobell, 142 F.Supp. 515 (1956), aff'd 244 F.2d. 520 (1957), cert. denied 355 U.S. 873 (1957); United States v. Alvarez‑Machain, 119 L. Ed. 2d 441 (1992); Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Cotroni v. Attorney General of Canada, [1976] 1 S.C.R. 219.
By Sopinka J. (United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331 and United States of America v. Charles Julius McVey, File No. 21751) (dissenting)
Riley v. Commonwealth of Australia (1985), 62 A.L.R. 497; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Buck v. The King (1917), 55 S.C.R. 133; United States v. Rauscher, 119 U.S. 407 (1886); Washington (State of) v. Johnson, [1988] 1 S.C.R. 327; Re United States of America and Smith (1984), 15 C.C.C. (3d) 16, aff'd (1984), 16 C.C.C. (3d) 10 (H.C.J.); United States v. Allard, [1991] 1 S.C.R. 861; In re Nielsen, [1984] A.C. 606; United States Government v. McCaffery, [1984] 2 All E.R. 570; Argentina v. Mellino, [1987] 1 S.C.R. 536; Sinclair v. D.P.P., [1991] 2 All E.R. 366.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 6(1) .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 282, 324, 328 [now R.S.C., 1985, c. C‑46, ss. 321 , 366 , 380 ].
Extradition Act, R.S.C. 1970, c. E‑21, ss. 2 "extradition crime", "fugitive" or "fugitive criminal", 3, 15, 18(1)(a), (b), 19(b), 21, 22(a), (b), 34, Schedule I item 4, Schedule II Form Two.
Extradition Act, R.S.C., 1985, c. E‑23, s. 2(b).
Extradition Act, 1870 (U.K.), 33 & 34 Vict., c. 52, ss. 1, 3(1), 9, 10, 26.
Extradition Act, 1877, S.C. 1877, c. 25, ss. 1, 4.
Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, Arts. 1, 2(1), (2), (3), 8, 9(1), (2), (3), (4), 10(1), (2), 12(1), Schedule items 6, 12, 27.
Treaty between Her Majesty and the United States of America, to Settle and Define the Boundaries between the Possessions of Her Britannic Majesty in North America, and the Territories of the United States; for the Final Suppression of the African Slave Trade; and for the Giving Up of Criminals, fugitive from Justice, in Certain Cases (Ashburton-Webster Treaty), 1842, Can. T.S. 1952 No. 12, Art. X.
United States Code, Title 18, {ss} 1343.
Authors Cited
Blanchflower, Michael C. "Examination of the Law of the Requesting State in Extradition Proceedings" (1992), 34 Crim. L.Q. 277.
Blanchflower, Michael C. "Interpretation and Application of Extradition Crime in the Extradition Act" (1992), 34 Crim. L.Q. 158.
Blanchflower, Michael C. "State of Washington and Johnson" (1989), 31 Crim. L.Q. 197.
La Forest, Anne Warner. La Forest's Extradition To and From Canada, 3rd ed. Aurora: Canada Law Book, 1991.
La Forest, Gérard V. Extradition To and From Canada, 1st ed. New Orleans: The Hauser Press, 1961.
La Forest, Gérard V. Extradition To and From Canada, 2nd ed. With the assistance of Sharon A. Williams. Toronto: Canada Law Book, 1977.
Piggott, Sir Francis. Extradition: A Treatise on the Law Relating to Fugitive Offenders. London: Butterworths, 1910.
Shearer, Ivan Anthony. Extradition in International Law. Manchester: University Press, 1971.
United Kingdom. Royal Commission on Extradition, 1878. In Appendix to A British Digest of International Law, Part IV. Edited by Clive Parry. London: Stevens & Sons, 1965.
APPEAL (United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331) from a judgment of the British Columbia Court of Appeal (1988), 33 B.C.L.R. (2d) 28, 45 C.C.C. (3d) 413, [1989] 2 W.W.R. 673, dismissing an appeal from a judgment of Bouck J. (1988), 30 B.C.L.R. (2d) 197, granting an application for a writ of habeas corpus from an order of Dohm J. (1988), 4 W.C.B. (2d) 388, committing the accused for extradition. Appeal allowed, Lamer C.J. and Sopinka and McLachlin JJ. dissenting.
APPEAL (United States of America v. Charles Julius McVey, File No. 21751) from a judgment of the British Columbia Court of Appeal (1989), 40 B.C.L.R. (2d) 273, 52 C.C.C. (3d) 34, allowing an appeal from a judgment of Paris J. dismissing an application for a writ of habeas corpus with certiorari in aid from an order of Macdonell J. committing the accused for extradition. Appeal allowed, Lamer C.J. and Sopinka and McLachlin JJ. dissenting.
S. David Frankel, Q.C., and Cheryl J. Tobias, for the appellants.
Robert S. Anderson and David Lunny, for the respondent.
I & II
I United States of America v. Charles McVey II, also known as Charles Julius McVey (21331)
and between
IIUnited States of America v. Charles Julius McVey (21751)
The reasons of Lamer C.J. and Sopinka and McLachlin JJ. were delivered by
//Sopinka J.//
Sopinka J. (dissenting) -- These appeals concern the requirements for extradition pursuant to the Extradition Act, R.S.C. 1970, c. E‑21, now R.S.C., 1985, c. E‑23 ("the Act") and the Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3 ("the Treaty"). Specifically, the issue is whether it must be established before the extradition judge that the offence for which extradition is sought is listed in the Treaty according to the law of the United States as well as according to Canadian law. A subsidiary issue, if "double listing" is required, is whether the Court of Appeal erred with respect to one of the indictments which is the subject of this appeal, in concluding that the offence charged against the respondent was not listed in the Treaty according to the law of the United States.
I cannot agree with the interpretation of the Act and the Treaty which my colleague Justice La Forest proposes in his reasons. I also reach a different result. The facts and history of the proceedings are fully dealt with in the reasons of my colleague and I am able to proceed directly to the issues.
I. Issues
The United States appeals from both judgments of the British Columbia Court of Appeal. The principal issue, which arises on both appeals, can be stated as follows:
Before a warrant of committal is issued by an extradition judge, must it be established that the offence for which extradition is sought is one that is listed in the Schedule to the Treaty according to the law of the United States as well as according to Canadian law?
This is the only basis on which the United States challenges the Court of Appeal's decision in relation to the Los Angeles charges. With respect to the San Jose charges, however, if this question is answered in the affirmative, a second issue arises, namely, whether the Court of Appeal erred in concluding that the offence charged against the respondent did not fall within the crimes listed in the Schedule to the Treaty according to the law of the United States. Given my resolution of these two issues, I do not find it necessary to deal with a number of additional issues raised by the respondent.
II. Relevant Statutory and Treaty Provisions
Extradition Act, R.S.C. 1970, c. E‑21, now R.S.C., 1985, c. E‑23
2. In this Act
. . .
"extradition crime" may mean any crime that, if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in Schedule I; and, in the application of this Act to the case of any extradition arrangement, "extradition crime" means any crime described in such arrangement, whether or not it is comprised in that Schedule;
. . .
"fugitive" or "fugitive criminal" means a person being or suspected of being in Canada, who is accused or convicted of an extradition crime committed within the jurisdiction of a foreign state;
3. In the case of any foreign state with which there is an extradition arrangement, this Part applies during the continuance of such arrangement; but no provision of this Part that is inconsistent with any of the terms of the arrangement has effect to contravene the arrangement; and this Part shall be so read and construed as to provide for the execution of the arrangement.
15. The judge shall receive, in like manner, any evidence tendered to show that the crime of which the fugitive is accused or alleged to have been convicted is an offence of a political character, or is, for any other reason, not an extradition crime, or that the proceedings are being taken with a view to prosecute or punish him for an offence of a political character.
18. (1) The judge shall issue his warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,
. . .
(b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify his committal for trial, if the crime had been committed in Canada.
Extradition Treaty between Canada and the United States, Can. T.S. 1976 No. 3:
Article 1
Each Contracting Party agrees to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with, or convicted of, any of the offenses covered by Article 2 of this Treaty committed within the territory of the other, or outside thereof under the conditions specified in Article 3(3) of this Treaty.
Article 2
(1) Persons shall be delivered up according to the provisions of this Treaty for any of the offenses listed in the Schedule annexed to this Treaty, which is an integral part of this Treaty, provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.
(2) Extradition shall also be granted for attempts to commit, or conspiracy to commit or being a party to any of the offenses listed in the annexed Schedule.
(3) Extradition shall also be granted for any offense against a federal law of the United States in which one of the offenses listed in the annexed Schedule, or made extraditable by paragraph (2) of this Article, is a substantial element, even if transporting, transportation, the use of the mails or interstate facilities are also elements of the specific offense.
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.
Article 12
(1) A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted nor be extradited by that State to a third State unless:
(i)He has left the territory of the requesting State after his extradition and has voluntarily returned to it;
(ii)He has not left the territory of the requesting State within thirty days after being free to do so; or
(iii)The requested State has consented to his detention, trial punishment for an offense other than that for which extradition was granted or to his extradition to a third State, provided such other offense is covered by Article 2.
III. Analysis
1. Double Criminality and Listing
The Approach
The extradition of fugitive criminals from Canada is governed by the Extradition Act. As a result of s. 3 of the Act, where there is an extradition arrangement, which includes a treaty, in place with any foreign state, the Act must be read and construed to provide for the execution of the arrangement, and the arrangement takes precedence over any provision of the Act that is inconsistent with it. Thus the resolution of the issue in this case turns on an analysis of the relevant provisions of the Act and the Canada‑United States Treaty. The Court's task is not to establish what it would consider to be the ideal extradition arrangement between Canada and the United States, but to interpret the scheme existing at the time when these extradition proceedings were commenced. That the correct approach is treaty‑specific has been recognized by courts in several jurisdictions. In Riley v. Commonwealth of Australia (1985), 62 A.L.R. 497 (H.C. Aust.), Gibbs C.J. observed at p. 504:
It was held by the Supreme Court of the United States in Factor v. Laubenheimer (1933) 290 US 276, 78 Law Ed 315, that the nature and extent of the right to demand extradition and the duty to extradite depend on the terms of the Treaty which creates the right and the duty rather than on the principles of international law: see at p 287 (p 320 of Law Ed). Lord Diplock appears to have proceeded on the basis of a similar view in Re Nielsen, [1984] A.C. 606 at pp. 624‑5. [Emphasis added.]
We must not lose sight of the fact that extradition treaties, although they are arrangements between governments, affect the liberty of individuals. Many of these individuals are citizens of Canada who, by virtue of s. 6(1) of the Canadian Charter of Rights and Freedoms , have the constitutional right to remain in Canada unless taken away by law which meets the test of s. 1 of the Charter . See United States of America v. Cotroni, [1989] 1 S.C.R. 1469. If the parties to the treaty are of the view that the arrangement is not achieving its purpose in bringing criminals to justice, they are free to amend the treaty. In this regard, I note that, since this appeal was heard, amendments to the Canada‑United States Treaty replacing the Schedule of offences with a provision for extradition for "conduct which constitutes an offence punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment", have come into force (Can. T.S. 1991 No. 37, Art. 1 ).
The Scheme Established by the Extradition Act and the Canada‑United States Treaty
The essence of the appellant's position which my colleague accepts is this. Extradition from Canada is exclusively a creature of statute and the treaty. These instruments define under what conditions a person is extraditable. There are basically two requirements. It must be established that the fugitive is charged with or has been convicted of an offence that is a listed crime under the law of (1) the requesting state and (2) the requested state. The Act provides for a hearing to determine whether the fugitive is extraditable, but while it can determine whether the second requirement is met, it cannot deal with the first requirement. The determination of this aspect of extraditability is exclusively the prerogative of authorities in the prosecuting state. This strikes me as somewhat unusual in that a citizen of Canada who is accused of a crime that may not exist in the United States must suffer apprehension and be sent out of the country before he or she is able to address the first of the two requirements stipulated by the treaty. I have no doubt that such a result can be achieved by appropriate language. In my opinion, however, this treaty cannot bear this interpretation.
The task of the extradition judge faced with a request for extradition by a foreign state is set out in s. 18 of the Act. Under s. 18(1)(b), the judge shall issue a warrant for committal in the case of a fugitive accused of an "extradition crime", if such evidence is produced as would, according to the law of Canada, justify his committal for trial, if the crime had been committed in Canada. This same standard of proof is provided for in Article 10 of the Treaty. A "fugitive" is defined in s. 2 of the Act as a person in or suspected of being in Canada, who is accused or convicted of an extradition crime committed within the jurisdiction of the foreign state. Section 15 provides that the judge shall receive any evidence tendered to show that the crime of which the fugitive is accused is an offence of a political character or is, for any other reason, not an extradition crime. The centrality of the concept of an "extradition crime" to the task of the extradition judge is thus evident. Under s. 18 of the Act, it is only with respect to such crimes that an extradition judge can issue a warrant of committal.
"Extradition crime" is defined in s. 2. Where there is an applicable extradition arrangement, it means any crime described in such arrangement. It is therefore necessary to turn to the terms of the Treaty. In art. 1, the parties agree to extradite persons who have been charged with, or convicted of, any of the offences covered by art. 2. It is clear that in the case of an individual being sought for extradition from Canada to the United States, the offence in respect of which he has been charged or convicted is an offence against United States law. This is confirmed by reference to the warrant of committal that must be completed by an extradition judge when the requirements of s. 18 are satisfied (Schedule II, Form Two). It states in part:
. . . and forasmuch as I have determined that he should be surrendered in pursuance of the said Act, on the ground of his being accused (or convicted) of the crime of ................... within the jurisdiction of .................. .
Therefore "offenses covered by Article 2 of this Treaty" must encompass the requirement that they are covered by Art. 2 according to United States law. Article 2(1) provides that persons shall be delivered up according to the terms of the Treaty for:
... any of the offenses listed in the Schedule annexed to this Treaty... provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.
The combination of Arts. 1 and 2 therefore requires that an offence of which the fugitive is accused be listed in the Schedule in order to found a request for extradition. Since the fugitive is accused of an offence under United States law, that offence must be listed in the schedule. If the same conduct amounts to different offences in the two countries, they must both be listed.
The interaction of Arts. 2 and 12 of the treaty confirms this conclusion. Article 12 prevents the prosecution of a fugitive for any "offense other than that for which extradition has been granted". This provision constitutes an important protection for the fugitive. Article 2(1) states that person shall only be delivered up "for any of the offenses listed in the Schedule". The combination of these two provisions means that a fugitive cannot be prosecuted for any offence other than an offence listed in the Schedule. Since a fugitive extradited to the United States will only be prosecuted for offences against United States law, this leads to the conclusion that the offence which forms the basis of the extradition request must be an offence which is listed in the Treaty according to the law of the United States.
There is nothing in Buck v. The King (1917), 55 S.C.R. 133, or United States v. Rauscher, 119 U.S. 407 (1886), which is inconsistent with these observations. The passages from those cases relied on by my colleague require that the accused be tried with respect to the specific offence with which he was charged, not the "offence for which his surrender was made" as suggested by my colleague. It is apparent that the offences are those in the requesting state. Thus, in Buck v. The King, in which Canada was the requesting state, the accused could only be tried for the offence for which he was extradited from the United States, that offence having been identified by its Canadian label, a charge under s. 414 of the Criminal Code .
The same reasoning would apply where no treaty is relied on. Under s. 18(1)(b), the judge must determine whether the fugitive is accused of an extradition crime as defined in s. 2 of the Act. That definition refers to "any crime that, if committed in Canada, or within Canadian jurisdiction would be one of the crimes described in Schedule I" (emphasis added). "Any crime" must refer to the crime of which the fugitive is accused. If it is not a crime, then it is not an extradition crime, and the fact that it satisfies the balance of the definition is irrelevant.
The appellant submits that this conclusion runs contrary to art. 8 of the Treaty which provides that the determination that extradition should or should not be granted shall be made in accordance with the law of the requested state, in this case, Canada. Similar language is found in ss. 18 and 34 of the Act. I do not agree that this provision precludes reference to the law of the requesting state. Proceedings can be conducted in accordance with Canadian law even though there is an issue as to what the law of the United States is on a particular point. Such a situation is not unique to the law of extradition. Moreover it is evident from the rest of the Treaty that these provisions do not preclude reference to the law of the requesting state. For example, Art. 2(1) requires reference to the law of both states in order to ascertain that an offence is punishable by greater than one year's imprisonment in each state. In order to make this determination, an extradition judge must first determine what particular offence the fugitive's alleged conduct constitutes in each state. It would be strange for a judge to find that an offence was "punishable by laws" of the requesting state when in reality no offence in law existed. A further example is provided by art. 2(3) which states:
(3) Extradition shall also be granted for any offense against a federal law of the United States in which one of the offenses listed in the annexed Schedule . . . is a substantial element . . . .
A determination of whether the requirements of this article are met clearly requires analysis of the United States law in question in order to determine whether the listed offence is a substantial element of it. Thus I would conclude that a double listing requirement is not inconsistent with art. 8.
Finally, I note that a double listing requirement is consistent with the introductory words of the Canada‑United States Treaty which provide that:
Canada and the United States of America, desiring to make more effective the co‑operation of the two countries in the repression of crime by making provision for the reciprocal extradition of offenders, agree as follows: [Emphasis added.]
A double listing requirement ensures that Canada only extradites in situations where Canada could successfully request extradition if the same conduct had taken place here and the fugitive had fled to the United States.
Relevant Authorities
Although the precise issue of double listing was not before the Court in Washington (State of) v. Johnson, [1988] 1 S.C.R. 327, Wilson J. writing for the majority, at p. 339, framed the issue in that case in terms consistent with my conclusion that an extradition crime must be listed in the Treaty according to the law of both the United States and Canada:
The central issue to be addressed in determining the nature of the double criminality rule is whether the rule requires the elements of the extradition crime to be the same in the requesting and the requested state or whether it merely requires the act charged to be a listed crime in both countries. [Emphasis added.]
Wilson J. concluded at p. 342 that the double criminality rule was "conduct‑based" by which she meant that an exact identity between the offence charged in the requesting state and the Canadian offence was not required, and that:
. . . if it could be established that the conduct of the fugitive constituted the listed offence of theft in both Canada and Washington the double criminality requirement would be met. [Emphasis added.]
In coming to this conclusion Wilson J. cited, with apparent approval, the definition of extradition crime given by G. V. La Forest in his text Extradition To and From Canada (2nd ed. 1977), at p. 42:
An extradition crime may broadly be defined as an act of which a person is accused, or has been convicted, of having committed within the jurisdiction of one state that constitutes a crime in that state and in the state where that person is found, and that is mentioned or described in an extradition treaty between those states under a name or description by which it is known in each state. This definition can be broken down into several propositions:
(1)the act charged must have been committed within the jurisdiction of the demanding state;
(2)it must be a crime in the demanding state;
(3)it must