Judgments

Decision Information

Decision Content

A-130-74
In the matter of the Extradition Act and in the matter of the request for extradition of Raymond George Shephard by the United States of America
Court of Appeal, Jackett C.J., Pratte J. and Hyde D.J.—Montreal, September 25, 1974.
Judicial review—Extradition—Refusal of warrant—Insuf- ficient evidence—Refusal upheld—Federal Court Act, s. 28— Extradition Act, R.S.C. 1970, c. E-21, s. 18.
A section 28 application was made to set aside an extradi tion judge's refusal of a warrant, upon finding the evidence insufficient to "put the accused to his defence on the basis thereof".
Held, it had not been established that, on a fair reading, the extradition "judgment" was not a proper application of the powers vested in the judge under section 18 of the Extradition Act. There was no distinction between this case and that of Puerto Rico v. Hernandez [1973] F.C. 1206.
APPLICATION. COUNSEL:
L. P. Landry, Q.C., for applicant.
Sidney Leithman and David Linetsky for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Blaise & Leithman, Montreal, for respond ent.
The following are the reasons for judgment delivered orally in English by
JACKETT C.J.: This is a section 28 application to set aside a refusal by an extradition judge to issue a warrant under section 18 of the Extradi tion Act,' which requires him inter alla to issue a warrant "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."
1 R.S.C. 1970, c. E-21.
No authorities that aid us directly in the inter pretation of this section have been cited to us.
I agree with the extradition judge that one type of case where an extradition judge should refuse to grant such a warrant is where a trial judge would feel obliged to direct a jury to bring in a verdict of acquittal and I agree, also, that "where the Crown's evidence is so manifestly unreliable or of so doubtful or tainted a nature as to make it dangerous or unjust to put the accused to his defence on the basis thereof" is such a case. I do not accept the submission that the latter proposition is restricted to a case of circumstantial evidence.
In spite of his reference to judicial dicta where opinions concerning particular factual sit uations have, as it seems to me, been stated as though they were laying down legal principles of general application, which go further than the law may go, counsel for the applicant has not convinced me that a fair reading of the extradi tion judge's "Judgment" establishes that it is not a proper application of the powers vested in him by section 18 as already discussed. I am also of opinion that there is no fair distinction in princi ple between this case and Puerto Rico v. Hernandez 2 ; but I must not be taken as express ing any general opinion or enunciating any new principle concerning affidavits such as the one that was under consideration by the extradition judge.
For the above reasons, I am of opinion that this section 28 application should be dismissed.
* * *
PRATTE J. concurred.
* * *
HYDE D.J. concurred.
2 [1973] F.C. 1206.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.