The Republic of Argentina v. Hector Mellino, [1987] 1 S.C.R. 536

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 CanLII 71 (SCC), [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 CanLII 71 (SCC), [1955] S.C.R. 183; considered: Hill v. The Queen, 1975 CanLII 38 (SCC), [1977] 1 S.C.R. 827; R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; referred to: Commonwealth of Puerto Rico v. Hernandez, 1973 CanLII 184 (SCC), [1975] 1 S.C.R. 228; Goldhar v. The Queen, 1959 CanLII 86 (SCC), [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 CanLII 48 (SCC), [1987] 1 S.C.R. 500; applied: Mills v. The Queen, 1986 CanLII 17 (SCC), [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 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Young (1984), 1984 CanLII 2145 (ON CA), 40 C.R. (3d) 289; R. v. Morton and Thompson (1868), 19 U.C.C.P. 9; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [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), 1906 CanLII 128 (ON SC), 11 C.C.C. 62; Armstrong v. State of Wisconsin, [1972] F.C. 1228; Minister of Indian Affairs and Northern Development v. Ranville, 1982 CanLII 202 (SCC), [1982] 2 S.C.R. 518; Re Global Communications Ltd. and Attorney‑General for Canada (1984), 1984 CanLII 2153 (ON CA), 10 C.C.C. (3d) 97; Re Insull, 1933 CanLII 130 (ON SC), [1933] 3 D.L.R. 709; Re United States of America and Smith (1984), 1984 CanLII 1913 (ON CA), 10 C.C.C. (3d) 540; United States of America v. Beaurone (1983), 1983 CanLII 2190 (SK QB), 27 Sask. R. 136; Re Federal Republic of Germany and Rauca (1983), 1983 CanLII 1774 (ON CA), 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 CanLII 48 (SCC), [1987] 1 S.C.R. 500; United States v. Allard, 1987 CanLII 50 (SCC), [1987] 1 S.C.R. 564.

By Lamer J. (dissenting)

Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500; Carter v. The Queen, 1986 CanLII 18 (SCC), [1986] 1 S.C.R. 981; United States v. Allard, 1987 CanLII 50 (SCC), [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 Bench[^1], 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:

2. 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.

3. 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 CanLII 71 (SCC), [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 CanLII 48 (SCC), [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, 1973 CanLII 184 (SCC), [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, 1975 CanLII 38 (SCC), [1977] 1 S.C.R. 827. In that case, the Court refused to follow its earlier decision in Goldhar v. The Queen, 1959 CanLII 86 (SCC), [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 CanLII 30 (SCC), [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 CanLII 47 (SCC), [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), 1984 CanLII 2145 (ON CA), 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 CanLII 5 (SCC), [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), 1906 CanLII 128 (ON SC), 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 CanLII 17 (SCC), [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 CanLII 202 (SCC), [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), 1984 CanLII 2153 (ON CA), 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 empowered to weigh the ultimate issue of whether delay will affect the trial of the action in the foreign country. The treaty places Canada under an obligation to surrender the fugitive for trial in the requesting country where such issues are to be considered. The assumption that the requesting state will give the fugitive a fair trial according to its laws underlies the whole theory and practice of extradition and our courts have over many years made it abundantly clear that an extradition judge should not give effect to any suggestion that the proceedings are oppressive or that the fugitive will not be given a fair trial or give proper weight to the evidence. In truth, the assumption by an extradition judge that delay or other defences would not be given appropriate consideration by the foreign court is even more offensive than the assumption of control over the actions of foreign diplomatic and prosecutorial officials. It amounts to a serious adverse reflection not only on a foreign government to whom Canada has a treaty obligation but on its judicial authorities concerning matters that are exclusively within their competence.

33. It would cripple the operation of our extradition arrangements if extradition judges were to arrogate the power to consider defences that should properly be raised at trial. How would we react to foreign courts exercising this kind of pre‑emptive jurisdiction in relation to trials in this country? There are, as well, practical considerations such as the limited information available to an extradition judge and his jurisdictional inability to obtain it: see, for example, Re Insull, 1933 CanLII 130 (ON SC), [1933] 3 D.L.R. 709 (Ont. S.C.); Re United States of America and Smith (1984), 1984 CanLII 1913 (ON CA), 10 C.C.C. (3d) 540 (Ont. C.A.), at p. 551; United States of America v. Beaurone (1983), 1983 CanLII 2190 (SK QB), 27 Sask. R. 136 (Q.B.), at p. 138. In Schmidt, supra, allusion was made that the general extradition procedure constituted a reasonable limit under s. 1 on the right a fugitive may have not to be surrendered for trial: see in this context Re Federal Republic of Germany and Rauca (1983), 1983 CanLII 1774 (ON CA), 4 C.C.C. (3d) 385 (Ont. C.A.) I also noted there that I see 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. There may, it is true, conceivably 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. These are judgments, however, that are pre‑eminently within the authority and competence of the executive to make. The courts may, as guardians of the Constitution, on occasion have a useful role to play in reviewing such decisions, but it is obviously an area in which courts must tread with caution.

34. Situations may, as is alleged in the present case, also conceivably arise where the Canadian officials who carry out the prosecution on behalf of the foreign state, do so in a manner that violates fundamental justice. In such cases, fundamental justice considerations may come into play that call for Charter review. However, not every delay raises such considerations; all the circumstances must be weighed; see in this context the American case of Matter of Burt, supra. It should also be noted that releasing a fugitive in such circumstances raises a serious problem. Is Canada to be absolved of its treaty obligation to a foreign state to surrender a fugitive because Canadian officials have been derelict in performing their duties regarding the request for surrender duly made by that state? This consideration, however, principally underlines the importance officials must attach to these matters. Theirs, acting on behalf of the executive, is the duty to carry out Canada's obligations. The courts, on the other hand, have the duty to ensure that actions of Canadian officials meet the standards of the Charter. Because of the seriousness of the matter, however, a court should not lightly attribute responsibility for delay to Canadian officials. In the present case what little there is on the record that could be looked upon as involving any lapses on the part of Canadian officials is highly tenuous. What the record reveals, instead, is that the delays came about from the difficulty experienced by the Argentinian authorities in organizing the evidence in a form acceptable under Canadian procedures. The circumstances are not, in my view, sufficiently lengthy or inconvenient as to make surrender under these circumstances sufficiently oppressive as to violate the principles of fundamental justice.

35. In the rare cases where the actions of Canadian executives or officials may give rise to the need for Charter review, I do not think the extradition judge has Charter jurisdiction. For reasons of efficiency, the Act and the treaty have strictly confined his role. Parliament has indicated how extradition proceedings are to be reviewed‑‑by superior courts by means of the 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, and from which, moreover, it has provided appeals to the Court of Appeal and to this Court, a court in habeas corpus proceedings is obviously the court of competent jurisdiction for the purposes of s. 24 of the Charter. It is interesting that a somewhat similar approach has been taken in the United States. In Matter of Burt, supra, the United States Court of Appeals, Seventh Circuit, held that the merits of a petitioner's due process claim could be considered as part of a habeas corpus review. The court thus put it, at p. 1484:

We hold that federal courts undertaking habeas corpus review of extraditions have the authority to consider not only procedural defects in the extradition procedures that are of constitutional dimension, but also the substantive conduct of the United States in undertaking its decision to extradite if such conduct violates constitutional rights.

36. Not only are the actions of Canadian officials in relation to extradition proceedings subject to review under the Charter, so too as I noted in Schmidt, supra, is the executive's exercise of discretion in surrendering a fugitive. However, this jurisdiction, as I there observed, must be exercised with the utmost circumspection consistent with the executive's pre‑eminent position in matters of external relations. The courts may intervene if the decision to surrender a fugitive for trial in a foreign country would in the particular circumstances violate the principles of fundamental justice. But, as already noted, it does not violate such principles to surrender a person to be tried for a crime he is alleged to have committed in a foreign country in the absence of exceptional circumstances. Our courts must assume that he will be given a fair trial in the foreign country. Matters of due process generally are to be left for the courts to determine at the trial there as they would be if he were to be tried here. Attempts to pre‑empt decisions on such matters, whether arising through delay or otherwise, would directly conflict with the principles of comity on which extradition is based; for a similar view in the United States, see Jhirad v. Ferrandina, supra. Should there be circumstances so substantial as to give rise to questions whether surrendering a fugitive would constitute a breach of fundamental justice, the extradition judge should bring them to the attention of the executive; see Royal Government of Greece v. Brixton Prison Governor, [1969] 3 All E.R. 1337 (H.L.)

37. Finally, in exercising jurisdiction over executive action, a court must firmly keep in mind that it is in the executive that the discretion to surrender a fugitive is vested. Consequently, barring obvious or urgent circumstances, the executive should not be pre‑empted. In cases where the feared wrong may be avoided by interstate arrangements, it may be doubted that the courts should ordinarily intervene before the executive has made an order of surrender. As already mentioned, the primary responsibility for the conduct of external relations must lie with the executive. The executive may well be able to obtain sufficient assurances from the foreign country to ensure compliance with the requirements of fundamental justice. It would, of course, be open to the courts to review any such arrangements to ensure compliance with Charter requirements. However, a court would have to be extremely circumspect in taking such a course. It should not lightly assume that the executive has ignored its undoubted duty to ensure that its actions conform to constitutional requirements or that a foreign country would not act in good faith in complying with such assurances.

38. It is clear in any event that these issues are not to be dealt with by the extradition judge.

Conclusion

39. For these reasons, I would allow the appeal, set aside the order of Waite J. and remit the matter to an extradition judge to continue the proceedings in accordance with the law.

The following are the reasons delivered by

40. Lamer J. (dissenting)‑‑I have read the reasons of my colleague Justice La Forest and agree with him that this Court has jurisdiction to hear this appeal. I also agree with him that this matter should be remitted below albeit for a different purpose.

41. As I discussed in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, s. 11 of the Canadian Charter of Rights and Freedoms generally applies to the extradition hearing in so far as it would apply to a preliminary inquiry. In my view, s. 11(b) 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.

42. The delay at issue here is the 17‑month delay between the discharge of Mellino because of evidentiary problems in the first extradition proceedings and the institution of the second proceedings. As this Court held in Carter v. The Queen, 1986 CanLII 18 (SCC), [1986] 1 S.C.R. 981, at p. 985 with respect to the computation of time under s. 11(b):

As I have indicated in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, which has been handed down this same day, the time frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. In passing, I might add that I say "generally" because there might be exceptional circumstances under which the time might run prior to the actual charge on which the accused will be tried. As an example, if the Crown withdraws the charge to substitute a different one but for the same transaction, the computation of time might well commence as of the first charge.

The computation of time for the purposes of s. 11(b) thus started to run when the first extradition proceedings were instituted. I am of the view that the 17‑month delay between the discharge of the respondent in the first hearing and the institution of the second proceedings, if unexplained, constitutes an infringement of the right to be tried within a reasonable time under s. 11(b). It is in my view irrelevant whether that delay was due to the acts of the Argentinian or the Canadian authorities, as the respondent's right is no less infringed whatever may be the source of the delay. Further, both governments are in a sense partners in the undertaking and it could be said that there is a domestication of the conduct of the Argentinian authorities.

43. As I discussed in United States v. Allard, 1987 CanLII 50 (SCC), [1987] 1 S.C.R. 564, an extradition judge is not a court of competent jurisdiction under s. 24(1) and applicants should seek remedy in the superior court. The extradition judge in this case, however, was a judge of the Alberta Court of Queen's Bench, which is a superior court. As in Allard, I think that, 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, however, 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. This being so, I would allow the appeal and send matters back to Waite J. so that he can complete the s. 24(1) hearing and, subject to his decision on that issue, terminate the extradition proceedings either way.

The following are the reasons delivered by

44. Wilson J.‑‑I agree with Justice La Forest for the reasons given by him that this Court has jurisdiction to hear this appeal. I disagree with him, however, for the reasons I gave in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, that s. 11 of the Canadian Charter of Rights and Freedoms has no application to extradition proceedings. I think that Charter rights may be pleaded in such proceedings and that (subject to the application of s. 1 which I leave open) there could undoubtedly come a point at which the delay in pursuing extradition in Canada would be unreasonable and s. 11(b) could properly be invoked. I do not believe, however, that this is such a case.

45. A lapse of time which might be unreasonable and constitute a violation of s. 11(b) in a purely domestic proceeding may, in my view, be fairly justified in a proceeding with foreign elements. But I do not think it appropriate for a Canadian court to call a foreign state to account for delay caused by it. To this extent I agree with La Forest J. as to the role of international comity. The Canadian court seized of the extradition proceedings can call the Canadian authorities to account and demand of them an explanation for any seemingly unreasonable delay but it cannot, in my view, do the same with the authorities in a foreign country. Accordingly, unlike my colleague Justice Lamer, I believe that any delay relied on under s. 11(b) must be delay caused by the Canadian authorities. The reason for this conclusion is, in essence, that an assessment of the reasonableness or otherwise of a delay presupposes the right to demand an explanation for it. If this right is not there, no assessment can be made. It cannot be determined whether the foreign delay was reasonable or not. That delay cannot therefore be considered under s. 11(b).

46. This case and United States v. Allard, 1987 CanLII 50 (SCC), [1987] 1 S.C.R. 564 (released contemporaneously herewith), are distinguishable from Schmidt (also released contemporaneously) in this respect. No breach of international comity is involved in Schmidt. No autonomous foreign authority is being called to account in Schmidt. No foreign law is being criticized in Schmidt. The only issue in Schmidt is the scope of our own constitutional protections. Are they available to a person involved in Canadian extradition proceedings?

47. For the respondent to succeed in this case he would, in my view, have to establish that the delay caused by the Canadian authorities was unreasonable. Since I do not see how he could possibly discharge that burden on the facts of this case, I agree with La Forest J. that the extradition judge was in error in discharging Mellino on the basis that his s. 11(b) right had been violated.

48. With respect to Mellino's argument that the delay in the extradition proceedings constituted an abuse of process or a violation of s. 7 of the Charter, again for the reasons I gave in Schmidt, I think it was perfectly open to the accused to raise these issues in the extradition proceedings. However, since the essence of the complaint is again the delay which was in large part due to the conduct of the Argentinian authorities, the argument based on abuse of process or s. 7 of the Charter must also fail.

49. On the issue of the jurisdiction of the extradition court judge, I agree with Lamer J. that an application may be made to such a judge under s. 24(1) of the Charter if, as in this case, he is also a superior court judge.

50. I would allow the appeal and remit the matter back to Waite J. to continue the extradition proceedings in accordance with law.

Appeal allowed, Lamer J. dissenting.

Solicitor for the appellant: Roger Tassé, Ottawa.

Solicitor for the respondent: John D. James, Calgary.