United States v. Allard, [1991] 1 S.C.R. 861

United States of America Appellant

v.

Alain Allard and Jean‑Pierre Charette Respondents

Indexed as: United States v. Allard

File No.: 20626.

1990: October 5; 1991: February 22; 1991: April 18.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.

on appeal from the superior court for quebec

Extradition ‑‑ Treaty ‑‑ Extradition crime ‑‑ Plane hijacking allegedly committed in foreign country ‑‑ Hijacking not extradition crime under treaties with foreign country or a crime in Canada at time allegedly committed ‑‑ Hijacking included in schedule of extradition crimes in subsequent treaty ‑‑ Whether subsequent treaty applies to crime ‑‑ Whether treaty applies to crime which did not exist under Canadian law when it was committed ‑‑ Extradition Act, R.S.C., 1985, c. E‑23, ss. 12, 34 ‑‑ Extradition Treaty Between Canada and the United States of America, Can. T.S. 1976 No. 3, art. 18(2), Schedule.

Appellant seeks the extradition of respondents for a plane hijacking allegedly committed in the U.S. in 1969. Hijacking was not a crime under Canadian law and was not an extradition crime under the extradition agreements between Canada and the U.S. at the time, but was added to the Criminal Code in 1972 and appears in the schedule of extradition crimes in the treaty which came into force in 1976. The extradition judge found that the 1976 treaty should not be applied retroactively and that it covers only crimes existing under Canadian law at the time of their commission. He refused the requests for extradition and ordered respondents' release.

Held: The appeal should be dismissed.

At the hearing, the Court brought to counsel's attention the 1970 Convention for the Suppression of the Unlawful Seizure of Aircraft, Article 8(1) of which provides that the crime of hijacking a plane is deemed to be included as an extradition crime in the extradition agreements between Canada and the U.S. from 1972, but the Convention does not affect the outcome of this appeal.

The first question here is whether the 1976 extradition treaty applies to a crime committed before it came into force. Under s. 12 of the Extradition Act, the fact that the crime for which extradition is sought was committed before a treaty came into force does not prevent extradition for that crime under the treaty, and the 1976 treaty and the agreements that preceded it contemplated extradition for crimes committed before their coming into force. However, the treaty applies only to crimes existing under Canadian law at the time of their commission. Under s. 34 of the Act, the list of extradition crimes set out in Schedule I is to be construed according to the law existing in Canada at the date of commission of the alleged crime, and the same rule should apply to crimes mentioned in the treaty only. A fugitive may accordingly only be extradited if the act with which he is charged was a crime recognized in Canada at the time it was committed.

Cases Cited

Disapproved: United States of America v. Binder, Ont. Dist. Ct., December 17, 1985, unreported; California (State) v. Ogoshi (1989), 1989 CanLII 7213 (BC SC), 51 C.C.C. (3d) 193; referred to: Re Cannon (1908), 1908 CanLII 197 (ON SC), 14 C.C.C. 186; R. v. Stone (No. 2) (1911), 1911 CanLII 242 (QC CQ), 17 C.C.C. 377; Re United States of America and Smith (1984), 1984 CanLII 3510 (ON SC), 15 C.C.C. (3d) 16; In re Counhaye (1873), L.R. 8 Q.B. 410.

Statutes and Regulations Cited

Convention for the Suppression of the Unlawful Seizure of Aircraft, Can. T.S. 1972 No. 23, art. 8(1).

Criminal Law Amendment Act, 1972, S.C. 1972, c. 13, s. 3.

Extradition Act, R.S.C., 1985, c. E-23, ss. 3, 12, 18(1)(b), 34, Schedule I.

Extradition Treaty Between Canada and the United States of America, December 3, 1971, Can. T.S. 1976 No. 3, art. 18(2), Schedule.

Treaty Between Her Majesty and the United States of America, to Settle and Define the Boundaries Between the Possessions of Her Britannic Majesty in North America, and the Territories of the United States; for the Final Suppression of the African Slave Trade; and for the Giving up of Criminals, Fugitive from Justice, in Certain Cases, August 9, 1842, Can. T.S. 1952 No. 12, art. X.

Supplementary Convention Between Her Majesty and the United States of America for the Extradition of Criminals, July 12, 1889, Can. T.S. 1952 No. 12, art. VIII.

Supplementary Convention Between Her Majesty and the United States of America for the Mutual Extradition of Fugitive Criminals (Enlarging List of Crimes), December 13, 1900, Can. T.S. 1952 No. 12, art. II.

Supplementary Convention Between His Majesty and the United States of America for the Mutual Surrender of Fugitive Criminals, April 12, 1905, Can. T.S. 1952 No. 12, art. II.

Supplementary Extradition Convention Between His Majesty and the United States of America, May 15, 1922, Can. T.S. 1952 No. 12, art. 3.

Supplementary Convention Between Canada and the United States of America to Provide for Extradition on Account of Crimes or Offences Committed Against the Laws for the Suppression of the Traffic in Narcotics, January 8, 1925, Can. T.S. 1952 No. 12, art. III.

Supplementary Convention to the Supplementary Convention Between Her Majesty and the United States of America for the Mutual Extradition of Fugitive Criminals, October 26, 1951, Can. T.S. 1952 No. 12, art. II.

APPEAL from a judgment of Riopel J. of the Quebec Superior Court[^1], sitting as an extradition judge, refusing requests for extradition. Appeal dismissed.

Jacques Letellier, Q.C., and Robert Marchi, for the appellant.

Pierre Poupart, for the respondent Alain Allard.

Robert Sacchitelle, for the respondent Jean‑Pierre Charette.

//La Forest J.//

The judgment of the Court was delivered by

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 in the United States in 1969. At the time, this crime was not an extradition crime under the extradition agreements between Canada and the United States and, moreover, hijacking was not as such a crime under Canadian law. It was not until 1972 that this crime was added to the Criminal Code (see S.C. 1972, c. 13, s. 3), and it now appears in the schedule of extradition crimes in the extradition treaty between Canada and the United States which came into force in 1976 (see Can. T.S. 1976 No. 3).

Riopel J. of the Superior Court of Quebec, acting pursuant to the Extradition Act, refused the requests for extradition and ordered the release of the respondents because of the retroactive application sought to be given to the treaty. It is from this judgment that the appellant appeals to this Court.

To succeed, the appellant must establish two propositions:

1. that the extradition treaty applies to a crime committed before the coming into force of the treaty, and

2. that the treaty applies to the crime of hijacking in the United States at a time when this crime did not exist under Canadian law.

So far as the first of these propositions is concerned, it should be noted that at the first hearing before this Court, the Court brought to the attention of counsel the 1970 Convention for the Suppression of the Unlawful Seizure of Aircraft (hereafter the Hague Convention), a multilateral convention which includes Canada and the United States as parties, and which came into force for Canada on July 24, 1972; see Can. T.S. 1972 No. 23. Article 8(1) of this treaty reads as follows:

Article 8

1. The offence shall be deemed to be included as an extraditable offence in any extradition treaty existing between Contracting States. Contracting States undertake to include the offence as an extraditable offence in every extradition treaty to be concluded between them.

At the second hearing before this Court, the parties were agreed that by virtue of this article, the crime of hijacking a plane must be understood as having been included as an extradition crime in the extradition agreements between Canada and the United States from 1972. However, as will be seen from the reasons that follow, this has no effect on the conclusion at which I have arrived.

While international practice may no doubt have a certain value in interpreting the law, it is important to underline that extradition does not exist by virtue of customary international law. Rather, extradition takes place in accordance with the Extradition Act, R.S.C., 1985, c. E-23, and, pursuant to s. 3 of the Act, with the provisions of the applicable treaty. Now s. 12 of the Act asserts the principle that the fact that the crime for which extradition is sought was committed before the coming into force of a treaty does not prevent extradition for that crime under the treaty. Section 12 reads as follows:

12. Every fugitive criminal of a foreign state, to which this Part applies, is liable to be apprehended, committed and surrendered in the manner provided in this Part, whether the crime or conviction in respect of which the surrender is sought was committed or took place before or after the date of an arrangement, or before or after the time when this Part is made to apply to that state, and whether there is or is not any criminal jurisdiction in any court of Her Majesty's Realms and Territories over the fugitive in respect of the crime. [Emphasis added.]

There is nothing in the 1976 treaty that modifies this principle in any way. In fact, the treaty and the agreements that preceded it seem to support the general principle. Article 18(2) of the treaty reads as follows:

Article 18

(2) This Treaty shall terminate and replace any extradition agreements and provisions on extradition in any other agreement in force between Canada and the United States; except that the crimes listed in such agreements and committed prior to entry into force of this Treaty shall be subject to extradition pursuant to the provisions of such agreements. [Emphasis added.]

It must be remembered that, by virtue of the Hague Convention, the crime here was comprised in the extradition agreements in effect at the time. Consequently, by virtue of Article 18(2) of the 1976 treaty, the crime was an extradition crime under the provisions of these agreements. Moreover, if one reads the provisions of these agreements carefully, it becomes evident that they contemplated extradition for crimes committed before their coming into force. These agreements consist of Article X of the Ashburton-Webster treaty of 1842, as modified by subsequent agreements. The first agreement modifying this treaty, the Convention of 1889, by Article VIII, it is true, contemplated that it did not apply to crimes committed before its coming into force, but each of the subsequent agreements expressly provided that the crimes added by it must be interpreted as if they had been set forth in the 1889 convention. That of 1900, for example, thus reads:

Article II. ‑- The present Convention shall be considered as an integral part of the said Extradition Convention of the 12th July, 1889, and the first Article of the last-mentioned Convention shall be read as if the list of crimes therein contained had originally comprised the additional crimes specified, and numbered 11 to 13 in the first Article of the present Convention.

A similar provision appears under all the other agreements providing for extradition between the two countries up to the coming into force of the 1976 treaty; see that of 1905, Article II, that of 1922, Article 3, that of 1925, Article III, and that of 1951, Article II; see Can. T.S. 1952 No. 12. The cases support the interpretation I have given these articles; see Re Cannon (1908), 1908 CanLII 197 (ON SC), 14 C.C.C. 186 (Ont. H.C.); R. v. Stone (No. 2) (1911), 1911 CanLII 242 (QC CQ), 17 C.C.C. 377 (Que. K.B.). It is true that there is no such clause in the Hague Convention, but given that this convention provided for the incorporation of the crime of hijacking in these agreements, I do not see why this crime should be treated differently. Besides, as I have already noted, this approach is in accordance with the general principle provided in the Act.

I, therefore, conclude that the appellant must succeed on this point.

I turn now to the second proposition mentioned earlier, that the treaty applies to a crime which did not exist under Canadian law when it was committed in the requesting state. The courts are divided on the issue. Re United States of America and Smith (1984), 1984 CanLII 3510 (ON SC), 15 C.C.C. (3d) 16 (Ont. Co. Ct.), supports Riopel J.'s opinion in the present case that the treaty applies only to crimes existing under Canadian law at the time of their commission; see also In re Counhaye (1873), L.R. 8 Q.B. 410. On the other hand, the cases of United States of America v. Binder, (Ont. Dist. Ct.), December 17, 1985, unreported, and California (State) v. Ogoshi (1989), 1989 CanLII 7213 (BC SC), 51 C.C.C. (3d) 193 (B.C.S.C.), support the view that it is sufficient that the crime be recognized in Canada at the time of the requisition. In my view, the latter cases do not give sufficient attention to s. 34 of the Act, which prescribes the manner in which the list of crimes set forth in Schedule I of the Act is to be interpreted. This section reads as follows:

34. The list of crimes set out in Schedule I shall be construed according to the law existing in Canada at the date of the commission of the alleged crime, whether by common law or by statute, and as including only such crimes, of the description comprised in the list, as are indictable offences under that law. [Emphasis added.]

It is true that s. 34 applies in terms only to crimes listed in Schedule I of the Act, but it must not be forgotten that when s. 34 came into force, these crimes were the only extradition crimes. The Canadian Act was closely modelled on the British statute except that, unlike the latter, it provided for the addition of crimes without adding to the Schedule. While the section was drafted in a rather clumsy manner, the general principle is clearly apparent. It would be odd if a different rule were applied to crimes listed in Schedule I than to those mentioned in the treaty only.

The foregoing seems consistent with s. 18(1)(b) of the Act, which provides for the issue of a warrant for the committal of the fugitive until surrendered to the foreign state. This section reads:

18. (1) The judge shall issue a warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,

(b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify the committal of the fugitive for trial, if the crime had been committed in Canada. [Emphasis added.]

I am, therefore, of the view that a fugitive may only be extradited if the act of which he is charged was a crime recognized in Canada at the time it was committed.

I should note that, despite the invitation of the Court, the parties did not raise the issue whether the respondents could have been extradited if the act alleged to have been committed by them was a crime, other than hijacking, which was listed in the treaty and was a crime according to the law of Canada at the time it was committed. It is thus unnecessary to consider this issue.

For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: The Deputy Attorney General of Canada, Montréal.

Solicitors for the respondent Alain Allard: Poupart & Cournoyer, Montréal.

Solicitors for the respondent Jean‑Pierre Charette: Bastien, Spagnoli, Montréal.

[^1]: Sup. Ct. Mtl., Nos. 550-27-009836-841 and 500-27-009035-843, June 29, 1987.