SUPREME COURT OF CANADA

Zingre v. The Queen et al., [1981] 2 S.C.R. 392

Date: 1981-09-28

Alfred Robert Zingre (Respondent) Appellant;

and

Her Majesty The Queen (Applicant) Respondent;

and

Kurt Wuest and Oskar Reiser (Respondents). Oskar Reiser (Respondent) Appellant; and

Her Majesty The Queen (Applicant) Respondent;

and

Kurt Wuest and Alfred Robert Zingre

(Respondents).

1981: May 11; 1981: September 28.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Evidence — Swiss nationals, now resident in Switzer—land and not subject to extradition, charged in Canada with criminal offences committed in Canada — Pro­ceedings commenced in Swiss courts at Canada's request pursuant to treaty — Swiss examining judges seeking sworn testimony for pre-trial stage necessary to Swiss judicial system — Whether or not order allowing commission evidence should be made — Canada Evi­dence Act, R.S.C. 1970, c. E- I0, ss. 40, 43, 48.

The Court in these appeals considered the right of a Manitoba court to issue a commission authorizing two Swiss "extraordinary investigating judges" to take tes­timony in Canada in respect of the prosecution in Switz­erland of three Swiss nationals for crimes allegedly committed in Manitoba. Swiss law prevented the extra­dition of Swiss nationals from Switzerland but an Anglo-Swiss Treaty of 1880 provided for prosecution of a fugitive on the charge according to the laws of the fugitive's canton.

Held: The appeals should be dismissed.

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Section 43 of the Canada Evidence Act and the treaty must be fairly and liberally interpreted with a view to fulfilling Canada's international treaty obligation. Although generally only made for use at trial, orders for examinations for gathering evidence may be made at the pre-trial stage. No distinction is made in s. 43 between trial and pre-trial proceedings. The court should exercise its discretion and grant this order for the order would not compromise Canadian sovereignty and was neces­sary for the carriage of justice. Without it, the treaty would be frustrated for the Swiss authorities would be unable to continue the surrogate criminal proceedings being conducted by them at Canada's request. The requirements of s. 43 were met. The Swiss request, made through the proper diplomatic channels, complied with the treaty and satisfied that section. The charges laid in Winnipeg underlay the Swiss proceedings and met the condition that charges be before a foreign court. The testimony was sought by a foreign court.

Re Geneva v. Comtesse, 1959 146 (ON SC), [1959] O.R, 668; The Schooner Exchange v. M'Faddon & Others (1812), 7 Cranch's Reports 116; Gulf Oil Corporation v. Gulf Canada Limited et al., 1980 192 (SCC), [1980] 2 S.C.R. 39; Re Radio Corporation of America v. The Rauland Corporation et al., 1956 152 (ON SC), [1956] O.R. 630; Radio Corporation of America v. Rauland Corporation and Another, [1956] 1 Q.B. 618; Re Request for International Judicial Assistance (1979), 1979 1128 (AB KB), 49 C.C.C. (2d) 276; Re Uszinska and the Republic of France (1980), 1980 2908 (ON SC), 52 C.C.C. (2d) 39; In Re Application by Letters Rogatory from United States District Court, Middle District of Florida, [1980] 1 W.W.R. 7; Re Kirchoffer v. The Imperial Loan and Investment Company (1904), 17 O.L.R. 295; Re Isler (1915), 1915 509 (ON SC), 34 O.L.R. 375; R. v. Dzambas (1973), 1973 1389 (ON CA), 24 C.R.N.S. 118, referred to.

APPEALS from a judgment of the Manitoba Court of Appeal[^1] allowing the Crown's appeal against an order in respect of Zingre setting aside an order against him, and dismissing Reiser's appeal with respect to the order made against him. Appeals dismissed.

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K. P. Regier, Q.C., and A. Stewart, for the appellant Alfred Robert Zingre.

H. Walsh, Q.C., and P. Walsh, for the appellant Oskar Reiser.

J. P. Nelligan, Q.C., J. Chapman, Q.C., and Paul Teskey, for respondent Her Majesty The Queen.

The judgment of the Court was delivered by

DICKSON J.—The Court in this appeal is called upon to consider an unusual procedural matter of some considerable importance. At issue is the right of a Manitoba court to issue a commission author­izing two Swiss "extraordinary investigating judges" to take testimony in Canada in respect of the prosecution in Switzerland of three Swiss na­tionals for crimes allegedly committed in the Prov­ince of Manitoba.

I

The proceedings relate to the Churchill Forest Industries (Manitoba) Limited forestry complex at the Town of The Pas in Manitoba constructed during the mid and latter 1960's. The project, intended to stimulate industrial growth in an underdeveloped area of the province, was basically financed by public funds through an agency of the Government of Manitoba, namely, the Manitoba Development Fund, latterly known as the Mani­toba Development Corporation. As a result of an investigation into the construction and financing of the project criminal charges were laid against the appellants Alfred Robert Zingre and Oskar Reiser and others alleging fraud and conspiring to defraud. Large amounts of money are involved. One of the charges against Zingre and Reiser and two other named individuals alleges conspiracy to defraud the Manitoba Development Corporation of $36,596,262.22. The investigation has been pursued in nine countries.

During the month of February 1972 members of the Royal Canadian Mounted Police and two spe­cial prosecutors continued investigations in

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Europe. Prior to their attendance in Europe John N. Turner, then Attorney General and Minister of Justice of Canada, issued a Letter of Request, directed to the Competent Legal Authority, Switz­erland, requesting the assistance of the Swiss police in the inspection of records and documents of a number of companies and banks and in the interviewing of persons, including the accused. In response to Mr. Turner's letter the Swiss Department of Justice and Police provided assistance to the R.C.M.P. and the special prosecutors.

In the latter part of 1973 sworn testimony was given by some thirty-three witnesses before the Chief Provincial Court Judge of Manitoba. The evidence was taken in four different countries. On December 14, 1973 the judge issued warrants to arrest all the accused persons including Zingre against whom nine warrants to arrest were issued for charges of fraud, conspiracy to defraud and theft, and Reiser against whom twenty-three warrants to arrest were issued for like charges.

Prior to and following December 14, 1973 attempts were made to locate and apprehend the various accused persons with a view to having them extradited to Canada to face the criminal charges outstanding against them. Zingre and Reiser were, however, residents of Switzerland and, because of their citizenship, expressly exempted by treaty from extradition.

On August 8, 1975 Howard Pawley, then Attor­ney General of Manitoba wrote to the Chief of Extradition Section, Federal Department of Jus­tice and Police, at Berne, Switzerland making an official request that Zingre and Reiser and one Wuest be prosecuted in Switzerland in a court of competent jurisdiction for offences committed in the Province of Manitoba. The request was pursu­ant to the treaty and convention between Switzerland and Great Britain for the mutual surrender of fugitive criminals, signed at Berne on November 26, 1880. Article 1 of the treaty reads:

Her Majesty the Queen of the United Kingdom of Great Britain and Ireland engages to deliver up, under the circumstances and on the conditions stipulated in the

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present Treaty, all persons, and the Swiss Federal Coun­cil engages to deliver up, under the like circumstances and conditions, all persons, excepting Swiss citizens, who, having been charged with or convicted by the tribunals of one of the two High Contracting Parties of the crimes or offences enumerated in Article II, commit­ted in the territory of the one party, shall be found within the territory of the other.

In the event of the Federal Council being unable, by reason of his Swiss nationality, to grant the extradition of an individual who, after having committed in the United Kingdom one of the crimes or offences enume­rated in Article II, should have taken refuge in Switzerland, the Federal Council engages to give legal effect to and prosecute the charge against him according to the laws of the Canton of his origin; and the Government of the United Kingdom engages to communicate to the Federal Council all documents, depositions, and proofs relating to the case, and to cause the commissions of examination directed by the Swiss Judge, and transmit­ted through the proper diplomatic channel, to be execu­ted gratuitously.

The Canadian Embassy in Berne transmitted by a note verbale under the seal of the Embassy of Canada to the Police Division of the Federal Department of Justice and Police the request of the Attorney General of Manitoba for the prosecu­tion of the Swiss citizens Zingre, Reiser and Wuest. As the three accused were domiciled in separate Cantons of Switzerland the Swiss authorities decided that the Canton of Thurgau should be the Canton to handle the Canadian request. Extensive answers were provided by Canadian authorities to questions posed by the Swiss authorities and there was an exchange of documents.

On June 27, 1978 the Public Prosecutor's office of the Canton of Thurgau rejected the launching of criminal proceedings in that jurisdiction against the appellant Zingre, the appellant Reiser, and Kurt Wuest on the basis that: (a) 16 charges involving conspiracy to defraud were foreign to Swiss law; (b) 13 cases of theft against Oskar Reiser were covered by the Statute of Limitations; (c) 16 charges of fraud required proof of deceitful misleading which was not evident; (d) the entire matter was marked by political overtones and damages were not substantiated as at that time; (e) the doubtful outcome did not warrant the

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expenditure of the sum of at least 250,000 francs likely to be incurred in the investigation and prosecution.

This ruling was appealed. On March 13, 1979 the Chamber of Indictment of the Canton of Thur­gau handed down its decision, ordering the Public Prosecutor to open the criminal inquiry requested by Canada and Manitoba. Reiser appealed to the Supreme Court of Switzerland. The appeal was dismissed.

In accordance with the order of the Chamber of Indictment, two "extraordinary investigating judges" were appointed in Thurgau. The function of these magistrates is to examine documents and to interrogate witnesses in order to assist the authorities in determining whether the evidence justified a formal trial. At the end of the investiga­tion a report is submitted to the State Attorney who will then make a decision as to whether or not there is sufficient evidence before him. If he thinks that a crime has been committed, he will submit the case to the competent court and the accused will have to stand trial to face the charges brought by the State Attorney.

II

As might be expected, much of the evidence relevant to the inquiry is in Canada, the situs of the alleged offence. On October 31, 1980 the Federal Office for Police Matters of the Federal Department of Justice and Police submitted to the Canadian Embassy in Berne a request for assistance addressed to the Chief Justice of the Court of Queen's Bench for the Province of Manitoba. The request aimed at Messrs. Hanspeter Hirt and August Biedermann, both extraordinary investigating judges for the Canton of Thurgau, being appointed as Commissioners to take evidence in Canada in respect of the prosecution in Switzerland of Zingre, Reiser and Wuest. The request recited the investigations taking place in the Canton of Thurgau dealing with possible criminal charges against Zingre, Reiser and Wuest for pos­sible violations of the Criminal Laws of Canada and possible violations of the Criminal Laws of Switzerland. The charges laid in Canada against

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these three individuals are also recited. The follow­ing recital then appears:

AND WHEREAS it has been represented to the Department of Justice and Police of the Country of Switzerland that it is necessary for the purposes of the proper administration of justice and for the due determi­nation of the matter in dispute between the parties that the following named persons:

Nine persons are named. This further recital follows:

AND WHEREAS Mr. Hanspeter Hirt, LL.M., extraordinary investigating judge for the Canton of Thurgau, Frauenfeld, and Mr. August Biedermann, Attorney, extraordinary investigating judge for the Canton of Thurgau, Frauenfeld, are the Examining Magistrates in charge of the conduct of this examination and accordingly would be responsible for the examina­tion of, and production of all writings, records and documents by the aforesaid witnesses who are located in Canada.

The request asks Chief Justice Dewar to summon the witnesses and cause them to be examined under oath. All of the witnesses have indicated a consent to appear and give testimony as required.

On February 2, 1981 Mr. Justice Hamilton of the Manitoba Court of Queen's Bench made an order for the issuance of a commission to Messrs. Hirt and Biedermann for the examination under oath of the nine persons named in the request. Crown counsel and counsel for Reiser were present upon the motion. The appellant Zingre and Kurt Wuest were not present nor represented by coun­sel. Zingre filed a notice of motion for an order rescinding or reversing the order, in response to which the order issuing the commission was discharged and set aside with respect to Zingre on the ground that s. 43 of the Canada Evidence Act, R.S.C. 1970, c. E-10 had not been complied with. Section 43 provides that:

43. Where, upon an application for that purpose, it is made to appear to any court or judge, that any court or tribunal of competent jurisdiction, in the Commonwealth and Dependent Territories, or in any foreign country, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony

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in relation to such matter, of a party or witness within the jurisdiction of such first mentioned court, or of the court to which such judge belongs, or of such judge, the court or judge may, in its or his discretion, order the examination upon oath upon interrogatories, or otherwise, before any person or persons named in the order, of such party or witness accordingly, and by the same or any subsequent order may command the attendance of such party or witness for the purpose of being examined, and for the production of any writings or other docu­ments mentioned in the order, and of any other writings or documents relating to the matter in question that are in the possession or power of such party or witness.

Two other sections of the Canada Evidence Act should be noted. Section 40 reads:

40. This Part applies to the taking of evidence relating to proceedings in courts out of Canada.

Section 48 reads:

48. (1) The court may frame rules and orders in relation to procedure, to the evidence to be produced in support of the application for an order for examination of parties and witnesses under this Part, and generally for carrying this Part into effect.

(2) In the absence of any order in relation to such evidence, letters rogatory from any court of justice in the Commonwealth and Dependent Territories, or from any foreign tribunal, in which such civil, commercial or criminal matter is pending, shall be deemed and taken to be sufficient evidence in support of such application.

Mr. Justice Hamilton held there was no "pend­ing criminal matter" within the meaning of s. 43 of the Canada Evidence Act. Reference was made to Re Geneva v. Comtesse[^2], an application by the Swiss Consulate for an order pursuant to the Canada Evidence Act.

The Crown appealed. So did Reiser. In brief reasons, Freedman C.J.M., speaking for the Court said:

The main ground of attack by counsel for Reiser and counsel for Zingre is that an order should go only if the request for it emanates from a court or tribunal and if the evidence it seeks is to be used at a trial in respect of

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which a charge has been laid. It is contended that the investigating judges who have been authorized to take the testimony in Manitoba are not members of a court or tribunal, and are seeking the evidence, not for a trial, but rather to determine whether the evidence is of sufficient weight to support a decision that the accused be placed on trial.

The Court referred to the difference in nature and function of judicial personnel here and abroad, more specifically, the fact that judges frequently carry on an investigatory function in European jurisdictions. The Court added:

We must add that Hamilton J. erred in saying that there was no charge outstanding. The charges laid in Winnipeg qualified sufficiently for this purpose.

and concluded:

We conclude accordingly that the persons who are to take the testimony in Manitoba are indeed "judges" and are, ipso facto, members of a court. Further, the tes­timony they obtain here will be available for use at a trial in Switzerland.

We should not forget that the criminal proceedings originated in Manitoba, and that Manitoba has sought the assistance of the Swiss authorities in accordance with the terms of Article 1 Paragraph 2 of the Treaty. It is in furtherance of the obligations under the treaty that Switzerland is now seeking the assistance of the Mani­toba courts in this matter.

The Court allowed the Crown's appeal against the order respecting Zingre and dismissed Reiser's appeal in respect of the order against him.

III

As that great jurist, U.S. Chief Justice Marshall, observed in The Schooner Exchange v. M'Faddon & Others[^3] at pp. 136-37, the jurisdic­tion of a nation within its own territory is neces­sarily exclusive and absolute, susceptible of no limitation not imposed by itself, but common interest impels sovereigns to mutual intercourse and an

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interchange of good offices with each other.

It is upon this comity of nations that interna­tional legal assistance rests. Thus the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation but out of mutual deference and respect. A foreign request is given full force and effect unless it be contrary to the public policy of the jurisdiction to which the request is directed (see Gulf Oil Corporation v. Gulf Canada Limited et al.[^4]) or otherwise prejudicial to the sovereignty or the citizens of the latter jurisdiction.

The interests of sovereignty have come into con­flict with the principle of judicial comity in a number of situations and Canadian courts have refused to order the testimony of the individual for use in the foreign proceedings: for example, (i) where a request for production of documents was vague and general (Re Radio Corporation of America v. The Rauland Corporation et al.[^5]) and the court held that if the litigation were being conducted in Canada the litigants would not be required to comply with such a request; (ii) when discovery was sought against an individual not a party to the litigation, in violation of local laws of civil procedure (Radio Corporation of America v. Rauland Corporation and Another[^6]); (iii) when the main purpose of the examination was to serve as a "fishing expedition", a procedure not allowed in English or Canadian courts. (See RCA case (England), supra, per Lord Goddard C.J. at p. 625); (iv) where the granting of the order would place the person sought to be examined in the position of having to commit an offence such as violation of s. 178.2 of the Criminal Code in order to comply with the order (Re Request for Interna­tional Judicial Assistance[^7]); (v) where the person whose attendance for examination is sought is an accused in pending criminal proceedings in the requesting court and the testimony sought is for

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the purpose of such proceedings (Re Uszinska and the Republic of France[^8]).

It is sometimes said that an order for examina­tion will never be issued if the testimony is to be used as part of a pre-trial or investigatory proce­dure. This rule has been applied in large part in civil proceedings in which American courts have sought the assistance of Canadian authorities in the discovery process. It should be remembered that American rules relating to discovery are much broader than those in Canada and this in part may explain the reluctance of Canadian courts to enforce letters rogatory in these instances. While the rule has its genesis in civil litigation (the first application of the rule in Canada appears in the judgment of Gale J. in Re Radio Corporation of America v. The Rauland Corporation et al., supra, at p. 635) it has also been applied in criminal proceedings. In Re Application by Letters Rogatory from United States District Court, Middle District of Florida[^9], an American criminal court sought documents for use at a trial of Ameri­can citizens on charges of income tax evasion. Mr. Justice Miller of the Alberta Supreme Court granted the application for an order, but he noted the following principle [at p. 18]:

I infer from this that it must be established to the satisfaction of this court that the material requested by the Florida court in the letters rogatory is to be used at the trial of the criminal charges pending against the named persons, as set out in the letters rogatory. It also follows from this that, if the purpose of requesting the information or assistance is to provide a basis for an examination for discovery or a preliminary inquiry, the court should not accede to the request.

It may be worth noting that in the RCA litiga­tion in England (applied by Gale J. in the Canadi­an litigation), Devlin J., supra, at pp. 643-44, spoke of "pre-trial procedure" and discovery of

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documents in these terms:

In the United States of America it is not restricted merely to obtaining a disclosure of documents from the other party to the suit, but there is a procedure, which might be called a pre-trial procedure, in the courts of the United States which allows interrogation not merely of the parties to the suit but also of persons who may be witnesses in the suit, or whom it may be thought may be witnesses in the suit, and which requires them to answer questions and produce documents.

In general, our courts will only order an exami­nation for the purpose of gathering evidence to be used at a trial, but that is not to say that an order will never be made at the pre-trial stage. Section 43 does not make a distinction between pre-trial and trial proceedings. It merely speaks of the foreign court or tribunal "desiring" the testimony of an individual "in relation to" a matter pending before it. I do not think it would be wise to lay down an inflexible rule that admits of no excep­tions. The granting of an order for examination, being discretionary, will depend on the facts and particular circumstances of the individual case. The Court or judge must balance the possible infringement of Canadian sovereignty with the natural desire to assist the courts of justice of a foreign land. It may well be that, depending on the circumstances, a court would be prepared to order an examination even if the evidence were to be used for pre-trial proceedings. An illustration is the case of Re Kirchoffer v. The Imperial Loan and Investment Company[^10]. An action had been brought in Manitoba against a corporation by a former employee. The plaintiff had sought to examine the former manager of the defendant corporation on discovery, but the individual was a resident of Ontario and he refused to comply. The plaintiff then sought an order from the Ontario Court under the provisions of The Ontario Evi­dence Act and Canada Evidence Act compelling the former manager to submit to discovery. It was argued that the order should be refused, as the statute did not contemplate examinations for dis­covery. Chancellor Boyd at p. 296] rejected the argument and ordered the examination for

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discovery:

The Imperial Statute 19 & 20 Vict. ch. 113, sec. 1, relates to witnesses; ours extends to parties as well as witnesses: R.S.C. 1886, ch. 140.

The order asked is to examine Dr. Kertland, a manag­er of the defendants, for discovery. As such officer he is a quasi party, or stands for the person to be examined for the corporation who is the defendant. I think the statute applies on a liberal construction to such a case, and grant the order as upon an ex parte application.

In Re Isler[^11] the Ontario High Court ordered the examination of an individual based on letters rogatory from a "juge d'instruction" in France. The function of the "juge d'instruction" is described by René David in English Law and French Law (1980) at p. 65 as follows:

The role of a juge d'instruction is not to pronounce if the accused is guilty or not guilty; it is only to direct and supervise the procedure of enquiry led by ministère public and it is to decide, at the close of such enquiry, if it is appropriate or not to remand the accused for trial before a criminal Court ... The accused will only appear before such Court if, in the mind of juge d'in­struction, there is a probability that he is guilty.

It is clear that the testimony was for use at a pre-trial inquiry, yet the court ordered the examination.

In Re Geneva v. Comtesse, supra, the Ontario High Court received letters rogatory from a "juge d'instruction" in Switzerland. The Court refused to order the examination on another ground, with no reference being made to the fact that the testimony was for use at a pre-trial inquiry. Where there is no limitation or infringement of Canadian sovereignty, and where the facts are such that justice can only be done by ordering the examina­tion, the court should not refuse to make the order solely because the testimony relates to a pre-trial proceeding.

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IV

Section 43 of the Canada Evidence Act has its origin in s. 1 of the English Foreign Tribunals Evidence Act, 1856 (U.K.), c. 113, s. 1, which applies to civil proceedings. This section was made to apply to evidence for foreign criminal proceedings by s. 24 of The Extradition Act, 1870, 1870 (U.K.), c. 52.

In Canada, legislation was enacted duplicating the English legislation: 1868 (Can.), c. 76, s. 1; 1870 (U.K.), c. 52, s. 24; 1877 (Can.), c. 25, s. 4; 1883 (Can.), c. 35, s. 1. The criminal and civil provisions were amalgamated in R.S.C. 1886, c. 140, in An Act respecting the taking of Evidence relating to proceedings in Courts out of Canada which subsequently in 1906 was incorporated in the Canada Evidence Act, R.S.C. 1906, c. 145, ss. 38-46. Section 41 of the 1906 Canada Evidence Act is virtually identical with the present s. 43.

Section 43 is framed in extremely broad terms. It provides, as far as relevant:

Where, upon an application for that purpose, it is made to appear to any court or judge, that any court or tribunal of competent jurisdiction, ... in any foreign country, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to such matter, of a ... witness within the jurisdiction of such first mentioned court, ... the court or judge may, in its or his discretion, order the examina­tion upon oath ... of such party or witness accordingly

The section merely requires that:

1. There be an application made to a Superior Court in Canada (s. 41 defines 'court' as the Supreme Court of Canada and any Superior court of a province);

2. There must be a civil, commercial or criminal matter 'pending' before a foreign court or tribunal;

3. It must be 'made to appear' to the Canadian court or judge that the foreign tribunal is 'desirous' of obtaining the testimony of a party or witness within Canadian jurisdiction in relation to the pending matter.

If these conditions are satisfied, the Canadian court or judge "may, in its or his discretion" order

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the examination under oath of the party or witness concerned.

The appellants take four points. First, it is said that the request for assistance did not emanate from a court or tribunal of competent criminal jurisdiction in Switzerland. The letters rogatory in this case emanate from a department of government, the Federal Office for Police Matters of the Federal Department of Justice and Police (Office fédéral de la police).

I do not think this objection can be sustained, having regard to the legal proceedings conducted to date in Switzerland and the terms of the Treaty and of s. 43 of the Canada Evidence Act. Section 43 simply requires that there be "an application" and on that application, it be "made to appear" that a court or tribunal is "desirous" of obtaining testimony. The section does not speak of a specific application or request from a tribunal. I would interpret s. 43 in light of Article I of the 1880 Treaty, which recites that the commissions of examination shall be transmitted through the "proper Diplomatic channel". I consider that the Federal Office for Police Matters of the Federal Department of Justice and Police is the "proper Diplomatic channel", in light of the fact that the Swiss Chief of Federal Police was one of the signatories of the 1880 Treaty. Since the request complied with the Treaty, I would consider it sufficient for the purposes of s. 43 of the Act. In any event, the primary source of the letters rogato­ry was a "tribunal of competent jurisdiction" desirous of obtaining the testimony of witnesses within the jurisdiction of the Court of Queen's Bench in Manitoba.

Second, it is submitted that the evidence is sought by the Swiss Department of Justice and Police not for the purpose of trial but for the purpose of carrying on an investigation which is deemed necessary in order to determine whether criminal charges should be laid against the appel­lants. I have already discussed the "pre-trial" issue, and it is my view that, depending on the circumstances, it may be appropriate to invoke s. 43 in a pre-trial context. In my opinion, the circumstances of the present case are such that the court should exercise its discretion in favour of the

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investigating magistrates. I reach this conclusion because the contrary view would result in the purpose of the 1880 Treaty being completely frus­trated. Article I of that Treaty is designed to ensure that Swiss nationals who commit crimes in Great Britain, or in Canada, are prosecuted in Switzerland. There will be no evidence of the crime in Switzerland, the crime having been com­mitted in another jurisdiction. It will be impossible for the Swiss authorities to fulfil their obligations unless they are permitted to gather evidence at the scene of the alleged offence. This is recognized in the treaty itself, which makes explicit provision for the gathering of evidence by the Swiss magistrate in Great Britain. In short, if we prohibit the Swiss authorities from gathering evidence here, we will effectively make it impossible for them to conduct the prosecution which Canadian authorities asked them to undertake. The Swiss will not hold a trial because the investigating magistrates have not gathered sufficient evidence. We will not permit the magistrates to gather evidence because a trial has not yet been commenced. The only beneficiar­ies from this absurdity would be the accused who would be exempted from answering for their alleged offences.

Third, it is argued that in order for a criminal matter to be "pending" before a foreign court, a criminal charge or charges must be outstanding. Counsel take issue with the holding of the Mani­toba Court of Appeal that the "charges laid in Winnipeg qualified sufficiently" for the purpose of concluding there was a charge outstanding. Again, I think s. 43 must be read and construed in the light of the Treaty. The effect of Article I is this. If a Swiss national commits an Article II crime or offence in England, or in Canada, and seeks refuge in Switzerland, where he is non-extraditable, Switzerland will give legal effect to and prosecute the charge against him according to the laws of the Canton of his origin. Switzerland in effect conducts what has been referred to as a "surrogate" criminal prosecution in respect of the English or Canadian, as the case may be, charges. Also it is obvious, for the reasons given in discussing the second point raised by the appellants, that if charges had to be laid in Switzerland before the

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Swiss authorities had the right to investigate the alleged offence in the country of its commission, the treaty would be rendered completely ineffec­tive. I have no difficulty in concluding that a criminal matter is pending before a court or tri­bunal of competent jurisdiction in Switzerland affecting the appellants.

Fourth, according to s. 43 it must be "made to appear" that a foreign court is desirous of obtain­ing the testimony of the witnesses in Canada. The Court of Appeal held that the "extraordinary examining judges" were judges and, ipso facto, members of a court. These judges were desirous of obtaining the testimony of the witnesses in Canada. Therefore, the Court of Appeal conclud­ed, the requirement of s. 43 had been satisfied.

The appellants attack this argument. They sug­gest that the examining judges are not members of any court, but rather are impartial investigating officers similar to police investigators despite their designation as "extraordinary investigating judges" or "examining magistrates". That conten­tion is incorrect in that it fails to have regard to the differences between the continental systems of criminal justice and our own.

One should be wary of analysing the Swiss judicial system using our model. The European approach is quite different. In continental systems of criminal justice, there are three distinct stages to criminal procedure. The first is a preliminary investigation conducted by police officials and prosecution. This is followed by a judicial phase in which there is investigation by career judges known as "examining magistrates" or "juges d'in­struction". Witnesses are required to testify and documents are examined. If, following this judicial inquiry, the case is deemed by the prosecuting attorneys to be an appropriate one for trial a formal trial is held. (See generally Gerhard O. W. Mueller and Fré Le Poole-Griffiths, Comparative Criminal Procedure (1969) ch. 2).

What is now transpiring is the judicial investigating procedures of the Swiss judicial system. It amounts to a procedure similar to the preliminary

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inquiry in Canadian criminal procedure. It appears that this procedure was contemplated in the 1880 Treaty, Article I speaks of "commissions of exami­nation directed by the Swiss judge". The Article speaks of a "judge" and not of a "court". We must assume that the drafters of the Treaty were famil­iar with the Swiss Criminal Procedure and the reference to a "Swiss judge" must have been to an examining magistrate charged with taking evi­dence from witnesses. Thus the interpretation sug­gested by the Court of Appeal of Manitoba seems to accord with the intention of the Treaty.

Even if the Court of Appeal was wrong, it can be said that the Chamber of Indictment is "desi­rous" of receiving the testimony of the witnesses in Canada. The Chamber of Indictment has general powers of supervision over the investigation of crime. The Chamber ordered the investigation in this case, and it made specific mention of the appointment of an examining judge. The Chamber of Indictment stated:

Art. I, par. 2 of the Swiss-British Treaty of Extradition of November 26, 1880 (AS12 page 114) obligates Switzerland to "take over the criminal litigation of the applications in accordance with the law of the home Canton" as it pertains to Swiss citizens. This includes the possibility to reject the initiation of criminal investi­gations if the examining judge is of the opinion that the charges brought before him are not punishable and that the legal conditions for prosecution by law are not given.

V

This case is exceptional and differs in vital respects from the other cases to which the Court has been referred. The argument in favour of granting the order in the case at bar does not rest merely on the notion of "comity". It rests on treaty. In responding affirmatively to the request which has been made the Court will be recognizing and giving effect to a duty to which Canada is subject, by treaty, under international law. It is common ground that the treaty applies. None of the cases cited by the appellants involves a situa­tion where Canada is under obligation to provide assistance to foreign authorities. It is the duty of the Court, in interpreting the 1880 Treaty and s. 43 of the Canada Evidence Act to give them a

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fair and liberal interpretation with a view to fulfill­ing Canada's international obligations. Canada forced Switzerland to undertake criminal proceedings because Canada was unable to extradite the appellants from Switzerland. Now, Switzerland is asking Canada for assistance in those proceedings. The Treaty of 1880 places Canada under a specific obligation to comply with the Swiss request. If Canada denies the Swiss request it will be in breach of its international obligations. By the terms of the Treaty, orders for commission evi­dence, as requested by the Swiss, are part and parcel of the surrogate criminal proceedings in Switzerland. It must be assumed in the absence of evidence to the contrary that the request has been made in compliance with the Treaty, in conformity with Swiss rules and practice, and "with a view to the better administration of justice, and to the prevention of crime", the purpose for which the Treaty, as expressly stated herein, was entered into.

As the Canadian Department of External Affairs stated in a note to the Swiss Federal Policy Department, at the time of Canada's appeal from the decision of the public prosecutor "it is a recog­nized principle of international customary law that a state may not invoke the provisions of its internal law as justification for its failure to perform its international obligations."

The crimes alleged against the appellants were committed in Canada and, Swiss authorities are simply responding to a Canadian request that prosecution be initiated in Switzerland. It is one thing for country A to ask country B to permit the examination of citizens of country B in respect of a transaction arising in country A. Country B has no direct interest in the proceedings and it is proper to interpret s. 43 in a fairly strict fashion. It is quite another thing for country A to ask country B to permit the examination of citizens of country B in respect of matters arising in country B. Country B, in this case Canada, has a direct interest in the proceedings, the prosecution of the appellants.

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To the extent that the Manitoba courts have a discretionary right to issue the order requested, I can see no basis upon which the discretion should be exercised in favour of the appellants. Warrants for the arrest of the appellants have been outstand­ing since 1973. As Swiss nationals, they rely on the terms of the 1880 Treaty to protect them from extradition. They invoke, from a distance, Canadi­an legal processes in an attempt to frustrate the very Treaty upon which they rely. We are advised that none of the witnesses sought to be interviewed objects in any way to appearing. The only objec­tion has come from the fugitive accused. Crown counsel challenged the status of the appellants. He contended that the appellants had no right even to appear before Canadian courts considering they are fugitives from charges laid in Manitoba: R. v. Dzambas[^12]. It is not necessary for the resolution of this appeal to decide whether the appellants have status. Their anomalous position is, however, rele­vant to the exercise of discretion.

I would dismiss the appeals. No costs should be awarded.

Appeals dismissed.

Solicitors for Alfred Robert Zingre: Regier, Stewart, Winnipeg.

Solicitors for Oskar Reiser: Walsh, Micay & Company, Winnipeg.

Solicitors for Her Majesty the Queen: Simkin, Gallagher, Winnipeg.

[^1]: February 13, 1981.

[^2]: 1959 146 (ON SC), [1959] O.R. 668.

[^3]: (1812), 7 Cranch's Reports 116.

[^4]: 1980 192 (SCC), [1980] 2 S.C.R. 39.

[^5]: 1956 152 (ON SC), [1956] O.R. 630.

[^6]: [1956] 1 Q.B. 618.

[^7]: (1979), 1979 1128 (AB KB), 49 C.C.C. (2d) 276.

[^8]: (1980), 1980 2908 (ON SC), 52 C.C.C. (2d) 39.

[^9]: 1979 1128 (AB KB), [1980] 1 W.W.R. 7.

[^10]: (1904), 7 O.L.R. 295.

[^11]: (1915), 1915 509 (ON SC), 34 O.L.R. 375.

[^12]: (1973), 1973 1389 (ON CA), 24 C.R.N.S. 118.