Argentina v. Mellino

Argentina v. Mellino
Collection
Supreme Court Judgments
Date
1987-05-14
Report
[1987] 1 SCR 536
Case number
19272
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
Alberta
Subjects
Appeal
Constitutional law
Criminal law
Notes
SCC Case Information: 19272
Decision Content
Argentina v. Mellino, [1987] 1 S.C.R. 536
The Republic of Argentina Appellant
v.
Hector Mellino Respondent
indexed as: argentina v. mellino
File No.: 19272.
1985: December 19; 1987: May 14.
Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of queen's bench for alberta
Appeal ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Extradition ‑‑ Application for extradition dismissed by extradition judge ‑‑ Whether Supreme Court of Canada has jurisdiction to entertain appeal ‑‑ Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 2(1), 41.
Constitutional law ‑‑ Charter of Rights ‑‑ Application of Charter ‑‑ Trial within a reasonable time ‑‑ Extradition ‑‑ Seventeen‑month delay between respondent's discharge following the first extradition hearing and the initiation of the second ‑‑ Delay not attributable to Canadian authorities ‑‑ Whether s. 11(b) of the Charter applicable to an extradition hearing ‑‑ Whether Charter applicable to the action of a foreign country ‑‑ Canadian Charter of Rights and Freedoms, ss. 11 (b), 32 .
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Extradition ‑‑ Abuse of process ‑‑ Seventeen‑month delay between respondent's discharge following the first extradition hearing and the initiation of the second ‑‑ Delay not attributable to Canadian authorities ‑‑ Whether such delay constitutes an abuse of process and contravenes s. 7 of the Charter ‑‑ Whether s. 7 applicable ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 32 .
Constitutional law ‑‑ Charter of Rights ‑‑ Court of competent jurisdiction ‑‑ Whether superior court judge, acting as extradition judge, a court of competent jurisdiction to grant remedies under s. 24(1) of the Charter .
Extradition ‑‑ Jurisdiction of extradition judges ‑‑ Whether extradition judge has jurisdiction to administer Charter remedies or to deal with defences that could be raised at trial.
Respondent is alleged to have killed his wife at their home in Argentina. Shortly after his entry to Canada, a warrant of apprehension under the Extradition Act was issued and he was arrested on November 30, 1982. Held in custody until the extradition hearing, he was set free on February 1, 1983 when appellant failed to produce the necessary documentation within two months of the arrest as required by article XIV of the extradition treaty between Canada and Argentina. In June 1984, appellant made a second request for extradition and respondent was again arrested. At the outset of the extradition hearing on December 10, 1984, respondent made an application to have the proceedings stayed on two grounds: (1) that there was an infringement of s. 11 (b) of the Charter (trial within a reasonable time); and (2) that the extradition proceedings constituted an abuse of process. The extradition judge found that respondent's right under s. 11 (b) had been infringed, and pursuant to s. 24(1) of the Charter , dismissed the application for extradition and discharged him. The extradition judge held that in the absence of any reasonable explanation, the seventeen‑month delay between the discharge of the respondent because of evidentiary problems in the first extradition proceedings and the institution of the second proceedings was inordinate.
Held (Lamer J. dissenting): The appeal should be allowed and the matter remitted to the extradition judge to continue the proceedings in accordance with the law.
(1) The Jurisdictional Issue
This Court has jurisdiction to entertain the present appeal pursuant to s. 41 of the Supreme Court Act . In dismissing the application for extradition and discharging the respondent, the superior court judge, acting as an extradition judge, made a final judgment within the meaning of s. 41 . The decision of this Court in United States of America v. Link and Green, [1955] S.C.R. 183, which reached the opposite conclusion, is inconsistent with the reasoning of this Court in more recent cases and should no longer be followed.
Cases Cited
Overruled: United States of America v. Link and Green, [1955] S.C.R. 183; considered: Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Gardiner, [1982] 2 S.C.R. 368; referred to: Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Goldhar v. The Queen, [1960] S.C.R. 60.
(2) The Charter and the Abuse of Process Issues
Per Dickson C.J. and Beetz, McIntyre, Le Dain and La Forest JJ.: The extradition judge erred in dismissing the application for extradition on the ground that the respondent's right under s. 11 (b) of the Charter has been infringed. Section 11 has no application to extradition hearings. It relates only to charges laid by the governments referred to in s. 32 of the Charter . Respondent was, of course, never charged in Canada by any of the governments to which the Charter applies. The prosecution for the offence was within the jurisdiction of Argentina.
Further, s. 11(b) did not apply to the respondent by virtue of article V of the extradition treaty which provides that extradition shall not take place if "exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of the state applying or applied to". This provision was intended to bring into operation statutes of limitations that exist in some countries prohibiting prosecution for certain crimes after a stated lapse of time. Section 11(b) is not an exemption in that sense. It would require much stronger words to expand the application of our constitutional standards for expeditious prosecutions to the international arena.
The contentions that the proceedings should be stayed because the seventeen‑month delay between respondent's discharge following the first extradition hearing and the initiation of the second constitute an abuse of process or a breach of s. 7 of the Charter must fail. First, the power to grant a stay for abuse of process, which can be exercised only in the clearest of cases, is not vested in a judge at an extradition hearing. Second, s. 7 had no application in this case because the delay cannot be attributed to Canadian authorities, which is a prerequisite to the application of the Charter by virtue of s. 32 . The delay arose because of problems by the Argentinian authorities in framing the evidence in a form acceptable under Canadian law. Third, the delay in the present circumstances did not constitute an abuse of process or a contravention of the principles of fundamental justice. One cannot view delay resulting from the complexity involved in dealing with activities that reach across national boundaries and involve different systems of law and several levels of bureaucracies in the same way as that resulting in local prosecutions.
In any event, an extradition judge has no jurisdiction to deal with these issues and to grant the appropriate remedies. The role of the extradition judge is a modest one: absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed. The procedure bears a considerable affinity to a preliminary hearing, and the judge's powers have some similarity to those of a magistrate presiding at such a hearing. He has no jurisdiction to deal with defences that could be raised at trial and he has no Charter jurisdiction. The fact that an extradition judge is often a superior court judge does not alter the matter.
In the rare cases where the actions of Canadian officials in the extradition proceedings may give rise to the need for Charter review, the proceedings are to be reviewed by superior courts by means of a writ of habeas corpus. A court in habeas corpus proceedings is ordinarily confined to questions of jurisdiction, but as such proceedings are contemplated by Parliament as the sole means of review in extradition proceedings, a court in habeas corpus proceedings is obviously the court of competent jurisdiction for the purpose of s. 24 of the Charter .
Finally, there is nothing offensive to fundamental justice in surrendering in accordance with our extradition procedures an accused to a foreign country for trial in accordance with its traditional judicial processes for a crime alleged to have been committed there. Our courts must assume that he will be given a fair trial in the foreign country. There may be situations where it would be unjust to surrender a fugitive either because of the general condition of the governmental and judicial apparatus or, more likely, because some particular individual may be subjected to oppressive treatment. In such cases, the courts may, as guardians of the Constitution, on occasion have a useful role to play in reviewing the executive's exercise of discretion to surrender a fugitive. But it is obviously an area in which courts must tread with caution. The decision to surrender and the responsibility for the conduct of external relations, including the performance of Canada's obligations under extradition treaties, is vested in the executive.
Per Wilson J.: Section 11 of the Charter is applicable to extradition proceedings and s. 11 (b) can properly be invoked when the delay in pursuing extradition in Canada is unreasonable. But any delay relied on under s. 11 (b) must be delay caused by the Canadian authorities because under the principles of comity the Canadian court cannot require the foreign authorities to account for their delay. In the present case, the delay was due in large part to the conduct of the Argentinian authorities and the extradition judge therefore was in error in discharging the respondent on the basis of s. 11 (b).
Respondent's argument that the delay in the extradition proceedings constituted an abuse of process or a violation of s. 7 of the Charter must also fail since the essence of respondent's complaint was again the delay caused in large part by the Argentinian authorities.
An application may be made to an extradition judge under s. 24(1) of the Charter if, as in this case, he is also a superior court judge.
Per Lamer J. (dissenting): Section 11 of the Charter generally applies to extradition proceedings taking place in Canada in so far as it would apply to a preliminary inquiry. The right to be tried within a reasonable time is one of the rights guaranteed by s. 11 which is applicable to a preliminary inquiry and an extradition hearing. The liberty and security of the person subjected to the extradition hearing are affected by the holding of a hearing, and the principles of fundamental justice require that that hearing be resolved in a speedy manner. In the case at bar, the computation of time for the purposes of s. 11 (b) started to run when the first extradition proceedings were instituted. If the seventeen‑month delay between the discharge of the respondent in the first hearing and the institution of the second proceedings is unexplained, such delay constitutes an infringement of the right to be tried within a reasonable time under s. 11 (b). It is irrelevant whether that delay was due to the acts of the Argentinian or the Canadian authorities.
An extradition judge is not a court of competent jurisdiction within the meaning of s. 24(1) of the Char‑ ter and an applicant should normally seek remedy in the superior court. However, as a matter of practice, an application under s. 24(1) can be made to the extradition judge if he is also a superior court judge. At the time of the application in this case, the law as to who had jurisdiction under s. 24(1) was not clear, and it might well be that, as a result, the authorities did not attempt to explain and justify the otherwise unacceptable delay. Consequently, the matters should be remitted to the superior court judge presiding at the extradition proceedings for completion of the s. 24(1) hearing and, subject to the decision on that issue, to terminate the extradition proceedings either way.
Cases Cited
By La Forest J.
Followed: Canada v. Schmidt, [1987] 1 S.C.R. 500; applied: Mills v. The Queen, [1986] 1 S.C.R. 863; referred to: Jhirad v. Ferrandina, 536 F.2d 478 (1976); Sabatier v. Dabrowski, 586 F.2d 866 (1978); Matter of Burt, 737 F.2d 1477 (1984); R. v. Brixton Prison (Governor of), Ex parte Van der Auwera, [1907] 2 K.B. 157; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 40 C.R. (3d) 289; R. v. Morton and Thompson (1868), 19 U.C.C.P. 9; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Attorney‑General of Hong Kong v. Kwok‑A‑Sing (1873), L.R. 5 P.C. 179; Re Harsha (No. 2) (1906), 11 C.C.C. 62; Armstrong v. State of Wisconsin, [1972] F.C. 1228; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518; Re Global Communications Ltd. and Attorney‑General for Canada (1984), 10 C.C.C. (3d) 97; Re Insull, [1933] 3 D.L.R. 709; Re United States of America and Smith (1984), 10 C.C.C. (3d) 540; United States of America v. Beaurone (1983), 27 Sask. R. 136; Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385; Royal Government of Greece v. Brixton Prison Governor, [1969] 3 All E.R. 1337.
By Wilson J.
Referred to: Canada v. Schmidt, [1987] 1 S.C.R. 500; United States v. Allard, [1987] 1 S.C.R. 564.
By Lamer J. (dissenting)
Canada v. Schmidt, [1987] 1 S.C.R. 500; Carter v. The Queen, [1986] 1 S.C.R. 981; United States v. Allard, [1987] 1 S.C.R. 564.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (b), 24(1) , 32 .
Extradition Act, R.S.C. 1970, c. E‑21.
Extradition Treaty Between the Argentina Republic and Great Britain, S.C. 1894, p. xlii, art. V, XIV.
Fugitive Offenders Act, R.S.C. 1970, c. F‑32, s. 17.
Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 2(1) "the court appealed from", "final judgment", 41 [am. 1974‑75‑76, c. 18, s. 5].
Authors Cited
Booth, V. E. Hartley. British Extradition Law and Procedure, vol. 1. Alphen Aan den Rijn (The Netherlands): Sijthoff & Noordhoff, 1980.
APPEAL from a judgment of Waite J. of the Alberta Court of Queen's Bench1, acting as an extradition judge, dismissing an application for extradition. Appeal allowed, Lamer J. dissenting.
1 Alta. Q.B., December 11, 1984, No. 8401‑1277‑CB.
Douglas J. A. Rutherford, Q.C., and Michael C. Blanchflower, for the appellant.
John D. James, for the respondent.
The judgment of Dickson C.J. and Beetz, McIntyre, Le Dain and La Forest JJ. was delivered by
1. La Forest J.‑‑This appeal concerns the application of ss. 7 and 11 (b) of the Canadian Charter of Rights and Freedoms to extradition proceedings. These provisions read as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
...
(b) to be tried within a reasonable time;
2. The appeal also raises the question of which courts have jurisdiction respecting breaches of the Charter in relation to extradition matters.
Facts
3. On November 8, 1976, the respondent Hector Mellino is alleged to have shot and killed his wife at their home in Mendoza, Argentina. A warrant for his arrest was then issued by the appellant Republic of Argentina on June 27, 1977.
4. In 1979, Mellino was arrested in Uruguay and extradition proceedings were begun against him. However Argentina was unable to supply the necessary documentation within the time stipulated in its extradition treaty with Uruguay, and Mellino was accordingly released after two to three weeks' imprisonment.
5. Mellino later made his way to the United States and eventually entered Canada in the Fall of 1982. On November 22, 1982, he was arrested in Calgary under the Immigration Act. Two days later, on November 24, 1982, a warrant for his apprehension was issued under the Extradition Act, R.S.C. 1970, c. E‑21, and he was arrested on November 30. On December 6, 1982, Mellino was ordered to be held in custody until his extradition hearing, which was set for February 14, 1983. However, he was set free on February 1, 1983. By that time, two months had elapsed from the time of his apprehension, a period that brought into play article XIV of the extradition treaty between Canada and Argentina, which provides for a fugitive's release unless sufficient evidence is produced within that time to warrant his committal for surrender; see Statutes of Canada, 1894, p. xlii, at p. xlvii. Article XIV also makes provision for an extension of time but an application for this purpose by the Government of Canada to Brennan J. of the Court of Queen's Bench of Alberta was dismissed and Mellino was set free.
6. Mellino then applied for convention refugee status under the Immigration Act, and was granted that status on December 1, 1983. However, from some time during the Spring of 1983 up to the first half of 1984, meetings were held between officials of the Department of Justice of Canada and of Argentina regarding the preparation of evidence in a form admissible in a Canadian extradition hearing.
7. On June 19, 1984, Argentina made a second request for extradition. On June 29, a warrant of apprehension was issued by Rowbotham J., and on or about July 17, 1984, Mellino was again arrested. The extradition hearing was set for September 10, 1984, but on August 31 the Government of Canada applied to Dixon J. for an extension of time on the ground that a necessary witness, an Argentinian official, would be absent. The application was refused, but a further application on the same grounds to Quigley J. on September 10 was successful, and the extradition hearing was set for October 30, 1984. Subsequently, another application for an extension of time was made, this time, however, by counsel for Mellino. The application was granted and the hearing adjourned to December 10, 1984, by which date Mellino had been in custody for nearly five months.
8. At the commencement of the extradition hearing on December 10, 1984, an application was made on behalf of Mellino to the presiding judge, Waite J., to have the proceedings stayed on two grounds: first, that there was an infringement of s. 11 (b) of the Charter (trial within a reasonable time), and second, that the extradition proceedings constituted an abuse of process. On December 11, 1984, Waite J. found that Mellino's right under s. 11 (b) of the Charter had been infringed or denied, and pursuant to s. 24(1) of the Charter dismissed the application for extradition and discharged Mellino. At the time of his discharge no evidence had been presented in support of the request for extradition.
9. Waite J. held that in the absence of any satisfactory or reasonable explanation, the 17‑month delay between the discharge of Mellino because of evidentiary problems in the first extradition proceedings on February 1, 1983, and the institution of the second proceedings on June 29, 1984, was inordinate, especially having regard to the relatively simple requirements of the Act and the treaty, and the fact that Mellino's identity had been known to the Argentinian authorities since at least 1977. He noted that the second proceedings could not continue on September 10 as originally scheduled because of further evidentiary problems including the departure from Canada of an essential Argentinian witness. In his view, the delay in the proceedings was unreasonable within the meaning of s. 11 (b) of the Charter , particularly since, as article XIV of the treaty indicated, in extradition proceedings, time was of the essence.
10. In dismissing the application and discharging Mellino pursuant to s. 24(1) of the Charter , Waite J. rejected the argument that a judge in an extradition proceeding was not a court of competent jurisdiction. An extradition judge was equivalent to a magistrate on a preliminary inquiry in the sense that he exercised the same powers and applied the same test to the evidence. But in other senses, the extradition judge had a much broader jurisdiction. First, he had additional powers under treaty and by statute. Second, he did not sit as a persona designata but as a court of law properly constituted. Finally, he was and remained a judge of a superior court with the jurisdiction and powers appertaining to that position.
11. Application for leave to this Court was granted on April 4, 1985, [1985] 1 S.C.R. xii.
The Jurisdiction of this Court
12. This appeal is brought under s. 41 of the Supreme Court Act, R.S.C. 1970, c. S‑19, which in broad terms empowers this Court to grant leave to appeal from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in a particular case. The Act again underscores the breadth of the provision in s. 2(1) by defining "the court appealed from" as "the court from which the appeal is brought directly to the Supreme Court, whether such court is one of original jurisdiction or a court of appeal", and "final judgment" as "any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding". On a plain reading of these provisions, I would have thought it obvious that s. 41 applied to the present case. The decision of Waite J., from which this appeal is taken, finally dismissed the application for extradition on the ground that s. 11 (b) of the Charter had been infringed.
13. A difficulty arises because in United States of America v. Link and Green, [1955] S.C.R. 183, this Court, in an oral judgment, held that it had no jurisdiction under s. 41 to grant leave from a refusal of an extradition judge to commit a fugitive because in its view this was not a "judgment" within the meaning of s. 41 of the Supreme Court Act . Counsel for Argentina pointed out some factual distinctions between that case and the present, but in my view he rightly stressed the different contexts in which the two cases were decided. As I noted in Canada v. Schmidt, [1987] 1 S.C.R. 500, released contemporaneously with this case, the prevailing legislative policy at the time Link and Green was decided was against providing appeals in extradition cases. Equally, if not more important, most appeals to this Court were then as of right and, possibly as a defensive measure, the Court tended to interpret restrictively those areas of appeal over which it had control. As well, of course, this Court had just recently assumed the role of final court of appeal for Canada and the implications of this fact had not yet been fully apprehended.
14. While there were portents of things to come (see Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, at pp. 231, 232, 240 and 243), a clear break with the earlier approach was not made until Hill v. The Queen, [1977] 1 S.C.R. 827. In that case, the Court refused to follow its earlier decision in Goldhar v. The Queen, [1960] S.C.R. 60, and held that it had jurisdiction under s. 41 to hear an appeal against sentence. Pigeon J., for the majority, noted at p. 850 that s. 41 was enacted substantially in its present form when appeals to the Privy Council (which had had unlimited jurisdiction with special leave) were abolished and this Court was made truly supreme. It was apparent, he added, "that the new provision was intended to effect the change from a limited specific jurisdiction to a broad general jurisdiction". Laskin C.J., in dissent but not on this point, gave further emphasis to the expanded jurisdiction under s. 41 by saying, at pp. 831‑32, that he "would not exclude cases from the leave jurisdiction of this Court unless it is quite plain that they have been excluded by statute". Similar sentiments were expressed by the present Chief Justice, then Dickson J., in R. v. Gardiner, [1982] 2 S.C.R. 368. After a detailed review of the evolution of the interpretation of s. 41 , he concluded that "Hill mandated an expansive reading of s. 41(1), the better to enable this Court to discharge its role at the apex of the Canadian judicial system, as the court of last resort for all Canadians" (p. 404).
15. It will be obvious from the foregoing that Link and Green is inconsistent with the reasoning in more recent cases in this Court and should no longer be followed. I conclude, therefore, that this Court has jurisdiction to entertain the present appeal.
Section 11 (b) of the Charter
16. Waite J. treated the matter in the same way as if Mellino had been charged before him with a criminal offence in Canada, and held that s. 11 (b) had been violated. Mellino was, of course, never charged in Canada by any of the governments to which the Charter applies (s. 32 ). Rather he was charged with an offence in Argentina by the government of that country in respect of an act that took place wholly in Argentina. The prosecution for the offence was, therefore, wholly within the jurisdiction of Argentina. As I indicated in Schmidt, supra, s. 11 of the Charter has no application to extradition hearings. It is interesting that the courts of the United States have interpreted the Sixth Amendment of their Constitution guaranteeing speedy trials as not applying to extradition proceedings: see Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir. 1976); Sabatier v. Dabrowski, 586 F.2d 866 (1st Cir. 1978); Matter of Burt, 737 F.2d 1477 (7th Cir. 1984).
17. Counsel for Mellino, however, argued that s. 11 (b) of the Charter applied to Mellino by virtue of article V of the treaty which provides that extradition shall not take place if "exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of the state applying or applied to". This provision was obviously intended to bring into operation statutes of limitations that exist in some countries prohibiting prosecution for certain crimes after a stated lapse of time; for an example, see R. v. Brixton Prison (Governor of), Ex parte Van der Auwera, [1907] 2 K.B. 157. Such statutes are relatively easy to apply at an extradition hearing; one simply has to compute the time in accordance with the provisions of the statute. Section 11 (b), on the other hand, is not an exemption in that sense. It gives a Charter remedy for delay when a prosecution has been initiated; no fixed time is involved. One must take into account such matters as whether the delay is unreasonable having regard to the time particular procedures ordinarily take. In extradition matters, this would surely require an inquiry into how proceedings are conducted in the foreign country and involve comparing them with ours. As well, a thorough examination of the facts surrounding the delay would have to be made, a function, as I explained in Schmidt, supra, wholly out of keeping with extradition proceedings. It would require much stronger words than these to persuade me that a treaty provision of this kind was intended to expand the application of our constitutional standards for expeditious prosecutions to the international arena. In the present case, it would require considerable adaptations to apply s. 11 (b) to the relevant delay. The delay principally complained of is the time elapsed between the time Mellino was discharged following the first extradition hearing and the initiation of the second.
18. I conclude, therefore, that the extradition judge erred in discharging Mellino on this ground.
Abuse of Process and s. 7 of the Charter
19. At the hearing and on this appeal, counsel for Mellino also argued that the delay in the proceedings constituted an abuse of process. For this position, he particularly relied on R. v. Jewitt, [1985] 2 S.C.R. 128. There, Dickson C.J., writing for the Court, adopted the view expressed by Dubin J.A. in R. v. Young (1984), 40 C.R. (3d) 289 (Ont. C.A.), at p. 329, that at common law there existed a discretionary power in a trial judge to stay proceedings in a criminal case for abuse of process
where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. [pp. 136‑37]
Dickson C.J., however, expressly repeated the caveat made in Young that this is "a power which can be exercised only in the `clearest of cases'".
20. It should be observed, however, that, according to those cases, the power to grant a stay for abuse of process is vested in the trial judge, not in a judge at a preliminary hearing. Charter considerations apart, a judge at extradition hearing is in a position more closely related to that of a magistrate at a preliminary hearing. Such matters are to be dealt with at the trial in the foreign country like other defences. That approach has been followed in Canada from the development of extradition procedures as one can see from the often quoted passage of Hagarty C.J. in R. v. Morton and Thompson (1868), 19 U.C.C.P. 9, at p. 20:
I have always felt disposed to give the fairest and most liberal interpretation to the provisions of an arrangement like this Extradition Treaty, entered into by two nations professing a common civilization, with a thousand miles of conterminous boundary. They properly agree that their respective territories shall not be the asylum for those who commit crimes abhorrent to the laws of both communities. They agree to surrender, on demand, such persons, to be dealt with according to the laws they are said to have violated. I have neither the right nor the desire to doubt that, when surrendered, they will be legally and fairly dealt with. We are not asked here to pronounce on their guilt or to commit them for trial: all this is left to the foreign tribunal. We in effect only send them to be examined before the magistrate, who will decide if a case be made out for their commitment; just as we send an offender against our own laws to appear on a warrant granted on the testimony of witnesses he has never seen.
21. In this Court, counsel intertwined his contention that there was an abuse of process with an argument based on s. 7 of the Charter . As with the simple abuse of process argument, this argument, too, assumes that an extradition judge has jurisdiction to deal with the issue and grant the appropriate remedies. It also assumes that the delay can be attributed to officials of the Canadian government, which I would have thought was a prerequisite to the application of the Charter by virtue of s. 32 : see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. However, quite apart from these assumptions, which I shall address later, I am unable to accept this argument.
22. On the particular facts of this case, there would be a breach of s. 7 only if there had been an abuse of process, and that demands that the circumstances here were such as could be categorized as the "clearest of cases". I do not think this is such a case. The five‑year delay between the laying of charges against Mellino and his arrest is not in issue. The extradition process began soon after his arrival in Canada. Immediately following his arrest, a warrant of apprehension under the Extradition Act was issued, and an extradition hearing was scheduled. When Argentina failed to produce the necessary documentation within two months of Mellino's arrest, he was discharged as required by the treaty. It is the delay that followed that is said to constitute an abuse of process. Since an extradition is not a trial, new proceedings may be initiated on the same or new evidence. Seventeen months after his discharge, Mellino was again arrested following a second request for his extradition by Argentina. During these months, Mellino was free. There is no evidence that he was being harassed or interfered with by officials. So far as the delay might be thought to affect his defence to the charge, that, primarily owing to his own actions, was already five years old and his ultimate defence was, therefore, unlikely to have been prejudiced by the lapse of another 17 months; see in this context Jhirad v. Ferrandina, supra. In my view, there was no abuse of process or contravention of s. 7 . I should perhaps add that while Waite J. found the delay to have been unreasonable for the purposes of s. 11 (b) of the Charter (a ground already disposed of), he made no finding that such delay constituted an abuse of process or contra‑ vened the principles of fundamental justice.
23. In assessing the issue, a court must not overlook that extradition proceedings must be approached with a view to conform with Canada's international obligations. The courts have on many occasions reiterated that the requirements and technicalities of the criminal law apply only to a limited extent in extradition proceedings. One cannot view delay resulting from the complexity involved in dealing with activities that reach across national boundaries and involve different systems of law and several levels of bureaucracies in the same way as that in local prosecutions. This is especially so when one considers that extradition proceedings are but a small part of the many and variegated responsibilities of diplomatic officials. It is interesting that the time schedule set forth in article XIV has been described as hectic and criticized as too onerous: see V. E. Hartley Booth, British Extradition Law and Procedure (1980), vol. 1, at p. 42.
24. At all events, the assumption by a Canadian court of responsibility for supervising the conduct of the diplomatic and prosecutorial officials of a foreign state strikes me as being in fundamental conflict with the principle of comity on which extradition is based. Some protection is afforded the fugitive by article XIV, which provides for his release if the evidence is not forthcoming within a certain period. This, however, does not make time of the essence in the manner contemplated by the trial judge. The article simply ensures that a fugitive is not imprisoned indefinitely pending the presentation of evidence. Since a discharge at an extradition hearing for lack of evidence, like that at a preliminary hearing, is not final, it has long been recognized that new proceedings may be instituted on new, or even on the same evidence before the judge at the original hearing or another judge: see, for example, Attorney‑General of Hong Kong v. Kwok‑A‑Sing (1873), L.R. 5 P.C. 179; Re Harsha (No. 2) (1906), 11 C.C.C. 62 (Ont. H.C.); Armstrong v. State of Wisconsin, [1972] F.C. 1228 (C.A.) This was recognized by the judge and the parties, who acted on that basis.
25. The record does not show that the delay was attributable to Canadian authorities, which as already stated appears necessary to trigger s. 7 : see s. 32 . So far as one can gather, delays arose because of problems by the Argentinian authorities in framing the evidence in a form acceptable under Canadian law. The delay did not arise out of the conduct of the Canadian proceedings. There is no suggestion that the necessary documentary evidence was available before the date of the second request for extradition.
26. Finally, counsel for Mellino relied on cases based on s. 17 of the Fugitive Offenders Act, R.S.C. 1970, c. F‑32, which gives the courts power to review whether a surrender under that Act would be unjust or oppressive. But this is done in a completely different context. Surrender under that Act is not made under treaty obligation but as a matter of courtesy to Commonwealth countries. Consequently, Parliament has felt free to expressly authorize the courts not only to review on these grounds but to impose greater evidentiary demands on those seeking surrender. These tasks, I might add, would generally be easier to perform than they would be at an extradition hearing because Commonwealth countries are heirs to the British criminal justice system.
27. In my view, there was no abuse of process or contravention of s. 7 .
The Jurisdiction of the Extradition Judge
28. The foregoing is sufficient to dispose of the case, but it raises a further and important issue that merits attention. The extradition judge took the view that he enjoyed a much broader jurisdiction than that possessed by a magistrate presiding at a preliminary hearing under the Criminal Code . He was not, he affirmed, sitting as a persona designata but as a court of law and, as such, retained all his powers and jurisdiction as a judge of a superior court except to the extent that the treaty or a statute otherwise provided.
29. I cannot accept this proposition. It seems to me to ignore the modest function of an extradition hearing which (barring minimal statutory and treaty exceptions) is merely to determine whether the relevant crime falls within the appropriate treaty and whether the evidence presented is sufficient to justify the executive surrendering the fugitive to the requesting country for trial there. Responsibility for the conduct of our foreign relations, including the performance of Canada's obligations under extradition treaties, is, of course, vested in the executive. I repeat: the role of the extradition judge is a modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed. The procedure bears a considerable affinity to a preliminary hearing, and the judge's powers have some similarity to those of a magistrate presiding at such a hearing, who, as this Court held in Mills v. The Queen, [1986] 1 S.C.R. 863, has no power to administer Charter remedies. Indeed, the reasoning in Mills appears to me to be even more applicable to an extradition judge.
30. The fact that an extradition judge is often a superior court judge does not alter the matter. This has nothing to do with the issue of persona designata, which was discussed in Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, but rather with what the judge is authorized to do under the Act. The Act clearly spells out the duties of an extradition judge and it would be strange if his powers differed in accordance with whether he was a superior court judge, a county court judge or a commissioner. This reasoning has been adopted in relation to an extradition judge's power to grant bail: see, for example, Re Global Communications Ltd. and Attorney‑General for Canada (1984), 10 C.C.C. (3d) 97 (Ont. C.A.) It is interesting that in England extradition hearings are held before magistrates. When the Extradition Act (which was closely patterned on the English Act) was enacted over 100 years ago in Canada, jurisdiction was no doubt assigned to the superior and county court judges and commissioners because of the conditions prevailing in the country at the time. Many of the justices of the peace at the time may have been thought not to be equal to the task. There is nothing to suggest that judges acting in extradition matters were to be given any greater powers than those traditionally possessed by the English magistrates.
31. In particular, it is not the business of an extradition judge to assume responsibility for reviewing the actions of foreign officials in preparing the evidence for an extradition hearing. This would seem to me to be in breach of the most elementary dictates of comity between sovereign states. A foreign state obviously has jurisdiction over the actions of its officials, although, no doubt, the executive of this country must, on occasion, consider such matters in exercising its discretion to surrender a fugitive.
32. Nor is an extradition judge empowe