United States v. Allard, [1987] 1 S.C.R. 564

United States of America Appellant

v.

Alain Allard and Jean‑Pierre Charette Respondents

indexed as: united states v. allard

File No.: 19168.

1985: December 19, 20; 1987: May 14.

Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the superior court for quebec

Appeal ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Extradition ‑‑ Stay of proceedings ordered by extradition judge ‑‑ Whether Supreme Court of Canada has jurisdiction to entertain appeal ‑‑ Supreme Court Act, R.S.C. 1970, c. S‑19, s. 41(1).

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.

Constitutional law ‑‑ Charter of Rights ‑‑ Application of Charter ‑‑ Trial within a reasonable time ‑‑ Extradition ‑‑ Foreign country requesting extradition of fugitives five years after their return to Canada ‑‑ Delay not attributable to Canadian authorities ‑‑ Whether Charter has extraterritorial application so as to deprive a foreign country of a right conferred upon it by a treaty with Canada ‑‑ Canadian Charter of Rights and Freedoms, ss. 11(b), 32.

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Extradition ‑‑ Foreign country requesting extradition of fugitives five years after their return to Canada ‑‑ Delay not attributable to Canadian authorities ‑‑ Whether the surrender of the fugitives to a foreign country violates s. 7 of the Charter.

In May 1969, during a flight from New York to Miami, the respondents allegedly hijacked the plane to Cuba. They came back to Canada in 1979, and the appellant was informed of their return the same year. In 1984, it requested the extradition of the respondents. At the hearing, after the presentation of the evidence, the respondents made a motion pursuant to ss. 7 and 24(1) of the Charter on the ground that the action taken by the appellant to obtain extradition had been delayed in that the appellant had approached the Canadian authorities fifteen years after the crime was committed, and about five years after the return of the respondents to Canada. The respondents requested the judge to issue a stay of proceedings and release them because, under s. 7 of the Charter, there was an unjustified violation of their right to life, liberty and security of the person. A superior court judge, acting as an extradition judge, granted the motion. This appeal is to determine (1) whether the Supreme Court of Canada has jurisdiction under s. 41(1) of the Supreme Court Act to hear the appeal; (2) whether a judge of the Superior Court of Quebec, acting as an extradition judge, is a court of competent jurisdiction under s. 24(1) of the Charter to order a stay of proceedings; (3) whether the Charter has extraterritorial application so as to deprive a foreign country of a right conferred upon it by a treaty with Canada; and (4) whether s. 7 of the Charter applies in the present case.

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 hear the present appeal. In setting the respondents free, the Superior Court judge, acting as an extradition judge, made a final judgment for the purposes of s. 41(1) of the Supreme Court Act.

Cases Cited

Followed: Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536.

(2) The Charter Issues

Per Dickson C.J. and Beetz, McIntyre, Le Dain and La Forest JJ.: A judge acting in an extradition matter is not a court of competent jurisdiction for the purposes of s. 24(1) of the Charter.

The Charter can only apply to the activities of the governments mentioned in s. 32. It therefore does not apply to the activities of a foreign government, especially when these take place in the foreign country. The delays referred to in this case are those of the United States prosecutorial authorities in that country. Accordingly s. 11(b) of the Charter, which deals specifically with delay, has no application in this case. Further, a judge acting as an extradition judge does not have jurisdiction to deal with defences. The various defences to the charge are for the consideration of the judge at the trial in the United States. It should not be presumed that the foreign court to which the task of conducting the trial will be assigned will fail to take account of the kinds of questions the respondents raise. Rather, it must be presumed that the respondents will get a fair trial.

Finally, s. 7 of the Charter has no application in this case. The mere fact of surrendering, by virtue of a treaty, a person accused of having committed a crime in another country for trial in accordance with the ordinary procedures prevailing in that country, does not in itself amount to an infringement of fundamental justice, certainly when it has been established before a Canadian court that the acts charged would constitute a crime in Canada if it had taken place here. To arrive at the conclusion that the surrender of the respondents would violate the principles of fundamental justice, it would be necessary to establish that the respondents would face a situation that is simply unacceptable. Furthermore, it must be remembered that the discretion to make such a decision is primarily that of the executive. The courts undoubtedly have the right to review the decision by virtue of their responsibility to uphold the Constitution but this is a role that must be exercised with caution. Our international obligations are involved here and the executive obviously has the primary responsibility in this area.

Per Wilson J.: An extradition judge is not normally a court of competent jurisdiction for purposes of s. 24(1) of the Charter. But where as here the extradition judge is a superior court judge, then the s. 24(1) application may be made to him.

The Charter applies to extradition proceedings in a Canadian court and the respondents were fully entitled to argue that their s. 7 rights were violated by the five‑year delay in pursuing their extradition. To permit them to so argue is not to give the Charter extraterritorial effect. It is to give it effect in domestic proceedings in Canada which may, of course, have ramifications abroad. In order to succeed on their s. 7 argument, the respondents had to establish that the five‑year delay in proceeding against them was caused by the Canadian authorities. But the evidence seems to indicate that the delay was almost the sole responsibility of the U.S. authorities. The extradition judge was in error, therefore, in issuing a stay of proceedings on the basis that the respondents' s. 7 rights had been violated.

Per Lamer J. (dissenting): The Charter is applicable to extradition proceedings taking place in Canada and to the decision of the executive to surrender. In this case, if the five‑year delay is unexplained by the authorities, either American or Canadian, such delay constitutes an abuse of the extradition process taking place in Canada and therefore a violation of s. 7 of the Charter, and respondents are entitled to a stay as a remedy under s. 24(1).

An extradition judge is not a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter 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 put before the superior court judge presiding at the extradition proceedings the reasons, if any, explaining and justifying the delays in acting to extradite. Consequently, the matters should be remitted to the superior court judge 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: Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536; Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500; referred to: Matter of Burt, 737 F.2d 1477 (1984); Jhirad v. Ferrandina, 536 F.2d 478 (1976); United States v. Galanis, 429 F. Supp. 1215 (1977); Neely v. Henkel (No. 1), 180 U.S. 109 (1901).

By Wilson J.

Referred to: Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500; Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R 536.

By Lamer J. (dissenting)

Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500; Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863.

Statutes and Regulations Cited

49 United States Code, s. 1472(i).

Canadian Charter of Rights and Freedoms, ss. 7, 11(b), 24(1), 32.

Constitution of the United States, Art. VI.

Extradition Act, R.S.C. 1970, c. E‑21, ss. 10(1), 18(1).

Extradition Treaty Between Canada and United States of America, December 3, 1971, Can. T. S. 1976 No. 3, art. 8.

Supreme Court Act, R.S.C. 1970, c. S‑19, s. 41(1).

APPEAL from a judgment of Paul J. of the Quebec Superior Court[^1], acting as an extradition judge, ordering a stay of proceedings. Appeal allowed, Lamer J. dissenting.

[^1]: Sup. Ct. Mtl., September 13, 1984, Nos. 500‑27‑009036‑841, 500‑27‑009035‑843.

Jacques Letellier, Q.C., and Michael C. Blanchflower, for the appellant.

Pierre Poupart and Ronald Picard, for the respondents.

The judgment of Dickson C.J. and Beetz, McIntyre, Le Dain and La Forest JJ. was delivered by

1. La Forest J.‑‑The appellant, the United States of America, seeks the extradition of the respondents, Alain Allard and Jean‑Pierre Charette, for the crime of hijacking a plane, alleged to have been committed on May 5, 1969 in the Eastern District of New York as well as for conspiracy to commit that crime committed at the same place between March 18, 1969 and May 5, 1969. The appellant alleges that these crimes were committed in the following manner.

2. On May 5, 1969, the respondents, using the pseudonyms N. Marion and J. Gagnon, allegedly bought first‑class tickets for the New York‑Miami flight of National Airlines leaving New York on the same day. During the flight, the respondents, using a firearm and a knife, forced the crew to fly to Havana, Cuba where they finally left the plane.

3. Already in 1969, the American authorities had some evidence in their possession implicating the respondents in this matter. On May 21, 1969, for example, the FBI, which had received photographs of the respondents, had shown them to the passengers and crew who identified the respondents as the persons who had hijacked the plane already mentioned. On January 15, 1975, a Federal Grand Jury of the District of Columbia returned an indictment against the respondents for aircraft piracy under Title 49, United States Code, § 1472(i), which was later substituted by a superseding indictment in the Eastern District of New York on May 10, 1983.

4. The respondents remained in Cuba for about ten years, Charette until January 14, 1979, Allard until December 22, 1979. On their return to Montreal, they were arrested on disembarking from the plane by police officers who held warrants for their arrest in connection with incidents that occurred in Canada before 1969. Following that, they underwent short periods of imprisonment for crimes committed in Canada before 1969. The record does not, however, indicate either the dates or the length of time of their incarceration. The appellant was informed of the respondents' return to Canada in 1979.

5. On May 3, 1984, at the request of the appellant and pursuant to an information made by a member of the RCMP, arrest warrants were issued against the respondents by Ducros J. of the Superior Court of Montreal, acting as an extradition judge, pursuant to s. 10(1) of the Extradition Act, R.S.C. 1970, c. E‑21. On May 6, 1984, the respondents were arrested pursuant to the warrants but were released on bail the day of their appearance. After several adjournments, the case was heard by Paul J. of the Superior Court of Quebec on June 18, 19, 21 and 26 and was continued on August 28 and September 13, 1984.

6. After the presentation of the evidence of the above related facts, the respondents made a motion before Paul J. pursuant to ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms on the ground that the action taken by the appellant to obtain extradition had been delayed in that the appellant had approached the Canadian authorities fifteen years after the crime was committed, and about five years after the return of the respondents to Canada. The respondents requested the judge to issue a stay of proceedings and release them because, under s. 7 of the Charter, there was an unjustified violation of their right to life, liberty and security of the person.

7. Basing himself on s. 24(1) of the Charter, Paul J. granted the motion and ordered a stay of proceedings and, in consequence, released the respondents. In his view, the American authorities had known the identity of the respondents since 1969, but in spite of that, a request for extradition was only made in 1984. Obviously, the United States was not responsible for the ten‑year delay while the respondents were in Cuba, but in the judge's view the authorities gave no adequate explanation for the five‑year delay after the respondents' return to Canada. It was certainly not, he stated, because of the need to obtain evidence. In his view, whether the delay was intentional or resulted from negligence, it amounted to a denial of justice.

8. Paul J. also decided that he was a court of competent jurisdiction for the purposes of s. 24(1) of the Charter.

9. The following questions arise on this appeal:

10. Does the Supreme Court of Canada have jurisdiction under s. 41(1) of the Supreme Court Act, R.S.C. 1970, c. S‑19, to hear the appeal?

11. Is a judge of the Superior Court of Quebec, acting as an extradition judge, a "court of competent jurisdiction" under s. 24(1) of the Char­ter to order a stay of proceedings?

12. Does the Charter have extraterritorial application so as to deprive a foreign country of a right conferred upon it by a treaty with Canada?

13. Does s. 7 of the Charter apply in the present case?

14. In Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, a judgment delivered today, I explained why the first question must be answered in the affirmative. In setting the respondents free, Paul J. made a final judgment for the purposes of s. 41(1) of the Supreme Court Act. This Court therefore has jurisdiction to hear the appeal.

15. As to the second question, I also explained in Mellino why a judge acting in an extradition matter is not a "court of competent jurisdiction" for the purposes of s. 24(1) of the Charter.

16. The answer to the last two questions may also be found by referring to my reasons for judgment in Mellino as well as those in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, a judgment also delivered today. As to these two questions, it seems obvious in the first place that the Charter can only apply to the activities of the governments mentioned in s. 32. It therefore does not apply to the activities of a foreign government, especially when these take place in the foreign country. The delays referred to in this case are those of the United States prosecutorial authorities in that country. Accordingly s. 11(b) of the Charter, which deals specifically with delay, has no application in this case.

17. As I indicated in the cases already cited, a judge acting as an extradition judge does not have jurisdiction to try the case. The various defences to the charge are for the consideration of the judge at the trial in the United States. It should not be presumed that the foreign court to which the task of conducting the trial will be assigned will fail to take account of the kinds of questions the respondents raise. Rather, it must be presumed that the respondents will get a fair trial. The general provision in article 8 of the treaty, which provides that the determination of whether extradition should be granted or refused shall be made in accordance with the law of the requested state and that a fugitive has all the rights to all remedies and recourses provided by law, was not intended to displace the entire structure of the system of extradition. One should not, therefore, interpret it as importing into an extradition hearing all the defences that could be raised at a trial of an accused in Canada. The provision simply provides for the application of the law of the requested state to the determination of whether extradition will be granted, including remedies relevant to that procedure.

18. It is not the Canadian government that is prosecuting the respondents. Therefore, it is not that government that has a responsibility to see that the prosecution is conducted in accordance with procedures applicable in Canada. Accordingly, we need not enquire into whether the prosecution will conform to our procedures or if there are defences that could be raised if the trial took place in Canada. This would amount to exercising a jurisdiction that belongs to the country where the crime was committed.

19. I might add that we do not have at our disposal many of the facts that will be available to the court at the trial in the United States. Included among these are the duration of the trial of the respondents and their incarceration in Canada, during which time Canada was under no obligation to surrender the fugitives, as well as the delays inherent in the procedures for changing the venue of the trial in the United States. There may be other relevant questions to be addressed, such as whether there are witnesses who might not be able to appear because of the delay, as well as other circumstances that militate for or against a holding that there has been a violation of the principles of fundamental justice. But at all events these are questions for the court at the trial in the United States.

20. The only question that really arises, in this case, is whether the respondents will face a situation in the United States such that the mere fact of the Canadian government surrendering the respondents to the United States authorities for the purposes of trial in itself constitutes an infringement on fundamental justice. As I explained in the cases of Schmidt and Mellino, supra, the mere fact of surrendering, by virtue of a treaty, a person accused of having committed a crime in another country for trial in accordance with the ordinary procedures prevailing in that country, does not in itself amount to an infringement of fundamental justice, certainly when it has been established before a Canadian court that the acts charged would constitute a crime in Canada if it had taken place here. To arrive at the conclusion that the surrender of the respondents would violate the principles of fundamental justice, it would be necessary to establish that the respondents would face a situation that is simply unacceptable. Furthermore, it must be remembered that the discretion to make such a decision is primarily that of the executive. The courts undoubtedly have the right to review the decision by virtue of their responsibility to uphold the Constitution but this is a role that must be exercised with caution. Our international obligations are involved here and the executive obviously has the primary responsibility in this area.

21. As I indicated in Schmidt and Mellino, supra, the courts in the United States, which has a Constitution similar to ours, have proceeded in a similar manner. For example, in Matter of Burt, 737 F.2d 1477 (7th Cir. 1984), at p. 1487, where there was a delay of twenty years between the commission of the crime and the request for extradition, the Federal Court of Appeal of the United States expressed itself as follows:

We hold that no standards of fair play and decency sufficient to trigger due process concerns are automatically implicated when, in undertaking its foreign policy mission, a governmental extradition decision subjects a citizen accused of committing crimes in a foreign jurisdiction to prosecution in the foreign state after a substantial time has elapsed since the commission of the crime.... To constrain the government by placing on it the duty to undertake its extradition decisions with an eye not only toward the legitimate international interests of the United States as determined by the branch charged with that responsibility, but also toward the prejudice that might result to an individual accused because of the amount of time that has elapsed, would be to distort the aims of the diplomatic effort. After all, the actions of the United States in extraditing someone, do not result primarily from a desire to try the accused; it is the foreign state that is the instigator of the prosecutorial action.

See also: Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir. 1976); United States v. Galanis, 429 F. Supp. 1215 (D. Conn. 1977), at p. 1224. Counsel for the respondents maintained that the experience in the United States was not apt because the second paragraph of Article VI of the Constitution of that country provides that, along with the Constitution, treaties are the supreme law of the land. That consideration, however, does not appear to have played any part in the decisions to which our attention was brought. Rather these cases appear to be based on the essential nature of extradition. Indeed, the leading case on the subject, Neely v. Henkel (No. 1), 180 U.S. 109 (1901), was concerned with a statute of the United States Congress and makes no reference to the treaty power.

18. For these reasons, I would allow the appeal, quash the judgment of Paul J. and remit the matter to the judge acting in an extradition matter so that he may continue the hearing of the matter in accordance with the law.

The following are the reasons delivered by

19. 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. He refers to his reasons in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, with which I was partly in agreement. In disposing of this appeal I reiterate what I said in Schmidt. Clearly the Canadian Charter of Rights and Freedoms does apply to the proceedings taking place in Canada and to the decision of the executive to surrender to the extent I set out in Schmidt.

20. While I agree with the limits set out by La Forest J. as to the application of our Charter to the prospective trial in the foreign country, I am here addressing the effect of s. 7 on the conduct of the extradition proceedings and the executive's possible eventual decision to deport Allard and Charette. If unexplained by the authorities, American or Canadian, the delay of five years to act is, in my view, as was the view of Paul J., an abuse of the extradition process taking place in Canada and therefore in violation of s. 7 of our Charter, and respondents are entitled to a stay as a remedy under s. 24(1). With respect, I do not think that any weight should be given to the fact that it is the American authorities, and not the Canadian authorities, who were responsible for the unexplained and thereby unacceptable delay. The respondents' right to liberty protected under s. 7 will not be any less restrained by the issuance by a Canadian judge of a warrant for committal under s. 18(1) of the Extradition Act, R.S.C. 1970, c. E‑21, and thereafter by the executive's decision to surrender because the blameworthy conduct is that of the U.S.A. and not that of Canada. In a sense, both governments are partners in the undertaking and it could be said that there is a domestication of the conduct of the American authorities.

21. An extradition judge is not a court of competent jurisdiction acting under s. 24(1). Applicants should therefore seek remedy in the Superior Court, as was decided in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863. In Quebec, however, extradition proceedings are held by Superior Court judges and I cannot see why applications could not as a matter of practice be made to the presiding judge instead of going to one of his or her colleagues for a remedy under s. 24(1). At the time of the application in this case, the law as to who was or was not a court of competent jurisdiction under s. 24(1) was not clear, and it might well be that the authorities did not understandably put before Paul J. reasons, if any, explaining and justifying the otherwise unacceptable delays in acting to extradite. This being so, I would agree to allow the appeal and to send matters back to Paul J. so that he can complete the s. 24(1) hearing and, subject to the decision on that issue, to terminate the extradition proceedings either way.

The following are the reasons delivered by

22. Wilson J.‑‑I agree with my colleague, Justice La Forest, that this Court has jurisdiction to entertain this appeal.

23. I also agree with my colleague that an extradition judge is not normally a court of competent jurisdiction for purposes of s. 24(1) of the Canadian Charter of Rights and Freedoms. But where as here and as in Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R 536, the extradition judge is a superior court judge, then the s. 24(1) application may be made to him.

24. I believe for the reasons I gave in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, that the Charter applies to extradition proceedings in a Canadian court and that the respondents were fully entitled to argue that their s. 7 rights were violated by the five‑year delay in pursuing their extradition. To permit them to so argue is not, in my view, to give the Charter extraterritorial effect. It is to give it effect in domestic proceedings in Canada which may, of course, have ramifications abroad. This is not, however, in my view enough to warrant depriving Canadians of the benefit of Canada's supreme law in a Canadian court proceeding in the absence of a reasonable limit having been imposed on the Charter right under s. 1. As in Schmidt I leave the question of such a limit open as it is not necessary to deal with it in this case.

25. For the reasons I gave in Mellino I believe that in order to succeed on their s. 7 argument the respondents would have to establish that the five‑year delay in proceeding against them was caused by the Canadian authorities. The contrary appears to be the case. The delay seems to have been almost the sole responsibility of the U.S. authorities. I believe that the extradition judge was in error, therefore, in issuing a stay of proceedings on the basis that the respondents' s. 7 rights had been violated.

26. I would allow the appeal and remit the matter back to Paul J. to continue the extradition proceedings according to law.

Appeal allowed, Lamer J. dissenting.

Solicitor for the appellant: Roger Tassé, Ottawa.

Solicitor for the respondent Allard: Pierre Poupart, Montréal.

Solicitors for the respondent Charette: Ménard, Hébert & Picard, Montréal.