McVey (Re); McVey v. United States of America, 1992 CanLII 48 (SCC), [1992] 3 SCR 475

McVey (Re); McVey v. United States of America, 1992 CanLII 48 (SCC), [1992] 3 SCR 475

United States of America Appellant

v.

Charles McVey II, also known as Charles Julius McVey Respondent

and

United States of America Appellant

v.

Charles Julius McVey Respondent

Indexed as: McVey (Re); McVey v. United States of America

File Nos.: 21331, 21751.

1991: October 30; 1992: November 19.

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

on appeal from the court of appeal for british columbia

Extradition ‑‑ Extradition hearing ‑‑ Whether "extradition crime" must be determined not only according to Canadian law but also according to law of requesting state ‑‑ Whether extradition judge must determine that the crime is listed according to the law of the requesting state ‑‑ Extradition Act, R.S.C. 1970, c. E‑21, s. 18(1).

The respondent was charged with conspiracy to export high‑technology equipment to the U.S.S.R. and with having made false statements to the U.S. Department of Commerce and the U.S. Customs Service to effect such export (File No. 21331). He was also indicted for knowingly and intentionally devising and participating in a scheme to defraud a computer corporation of its right to the exclusive use of its property regarding the design and operation of one of its computers (File No. 21751). The United States began extradition proceedings in Canada pursuant to the Canada‑U.S. Treaty (Can. T.S. 1976 No. 3). The extradition judge in each case ordered respondent committed for extradition. Applications were brought for habeas corpus, where respondent argued that the charges were not extraditable under American law. The application succeeded in the first case, and was upheld on appeal. In the second case, the chambers judge concluded that the offence was extraditable under American law, but the Court of Appeal overturned his decision. The respondent voluntarily left the country but, because of the importance of the issue raised and because respondent could arguably return to Canada, the appellant still sought the Court's decision on these cases.

The principal issue in these appeals was whether the offence for which extradition is sought must be established, before the extradition judge, as being listed in the Treaty not only according to Canadian but also according to U.S. law. A subsidiary issue arises if "double listing" is required: whether the Court of Appeal erred with respect to one of the indictments (File No. 21751) in concluding that the offence charged against the respondent was not listed in the Treaty according to the law of the United States.

Held (Lamer C.J. and Sopinka and McLachlin JJ.dissenting): The appeals should be allowed.

Per La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.

I

United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331

The Act and the Treaty jointly determine a scheme which governs this extradition proceeding. Under that scheme, the role of the extradition judge is limited, but important: he or she must determine whether a prima facie case exists that the conduct of the fugitive constitutes an "extradition crime" according to Canadian law. The Act and the Treaty do not assign to the judge the task of determining whether it also constitutes an extradition crime under foreign law. That is a matter for the American authorities, subject to being monitored by the Canadian executive in determining whether the requisition for surrender complies with the terms of the Treaty.

The principles and rules governing extradition must be found in the Extradition Act and treaties; abstract principles of extradition law do not have independent force. Our Act is modelled after the British statute, and as such the law and practice of that country is of persuasive value on the issue in this appeal.

In our Act, an "extradition crime" is any crime that, if committed in Canada, would be one of the crimes listed in the Act or relevant treaty. The Act does not require proof that the act charged is a crime under the foreign law; rather, s. 34 requires that the list of crimes be construed according to Canadian law. The crime as it is known in the foreign state is set forth in the information and warrant of arrest, and this leaves it up to the Canadian authorities, ordinarily the extradition judge, to identify the equivalent Canadian crime.

Section 15 of the Act recognizes the possibility that a treaty may restrict the term "extradition crime". But s. 15 only gives the extradition judge jurisdiction to receive evidence on the matter, which under s. 19(b) the judge must transmit to the Minister for consideration. It is not intended by the Act that the extradition judge monitor all the many and variegated conditions, qualifications and restrictions to which states, through their extradition treaties, have qualified their obligations to other states to surrender fugitive criminals. This could lead to endless delays in a procedure intended to be expeditious, and the courts should not reach out to bring within their jurisdictional ambit matters that the Act has not assigned to them. Barring statutory provision, the task of monitoring international treaty obligations is for the political authorities, a task performed by the Ministers and departments in the course of conducting their appropriate mandates. By statute this duty is assigned to the Minister of Justice.

Turning to the treaty at issue here, none of its terms is inconsistent with the Act's stipulations that the extradition judge should be concerned solely with Canadian law. Nothing in the Treaty requires proof of foreign law at the extradition hearing, and the isolated provisions that invoke the law of the requesting state are merely to assist the executive in its duty of ensuring that the requesting state has complied with the terms of the Treaty.

Although the function of the extradition hearing is a modest one, it is critical to the liberty of the individual. And there are other protections afforded the fugitive. The Treaty provides that the person surrendered shall only be detained and tried in the requesting country for the offence for which his or her surrender was made. The courts of both countries deal with the offence under their own law, the law in which they are versed, but each must ascertain whether under that law the facts support the charge. To require evidence of foreign law beyond the documents now supplied with the requisition could cripple the operation of extradition proceedings.

Canadian authorities on this issue have long been in a state of confusion, due in part to the early English practice of obtaining proof of foreign law in extradition hearings. It is now settled in England, however, that the extradition judge, absent statutory provision, is not concerned with foreign law at all. Consistent with the English authorities, recent cases in this Court also indicate that the sole question for the extradition judge is whether the conduct of the fugitive would, if committed here, constitute an extradition crime under Canadian law.

The provisions in this Treaty concerning the law of the requesting state, in particular Art. 2(1) requiring the crime to be punishable by at least a one year sentence under the law of both states, do not alter the role of the extradition judge. Article 2 does not deal with judicial hearings but with the duty of the executive to deliver the fugitive according to the provisions of the Treaty. Interpreting this provision as having some impact on the extradition hearing ignores the fact that treaties are contracts between sovereign states that, except to the extent that a treaty requires a change in the law of the land, are administered by the executive and its officials.

The evidence of American law in this case was not only irrelevant; it was also misplaced. The issue is not whether the crime charged is called forgery or not in either country, but whether the conduct charged can fairly be said to fall within the expressions "forgery" and "conspiracy" in the treaty. The crimes in the treaty are not to be interpreted according to the niceties of the applicable legislation in either country. Rather they are described in a comprehensive and generic sense: it is the essence of the offence that is important. If the American authorities proceeded on too broad a basis, the matter could be raised at the diplomatic level. However, it would lie ill in the mouth of Canada to say to the United States that the act charged in this case does not fall within the genus of forgery when in this country it falls within the definition of forgery under Canadian law.

II

United States of America v. Charles Julius McVey, File No. 21751

For the reasons noted above, the extradition judge in this second case need not have concerned himself with the question of whether the extradition crime was listed in the treaty according to the law of the United States. Once the appellant established a prima facie case of an extradition crime according to the law of Canada, the extradition judge was required to surrender the respondent under s. 18(1)(b) of the Extradition Act, read in conjunction with s. 2 (the definition of an "extradition crime") and s. 34. Given the protections available to the fugitive under the Act and the Treaty, there is no point to a review of foreign law by the extradition judge. It is not the business of that judge to assume responsibility for reviewing the decisions of the officials and judicial authorities in the foreign state.

Per Lamer C.J. and Sopinka and McLachlin JJ. (dissenting)

I & II

United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331 and United States of America v. Charles Julius McVey, File No. 21751

Under the Canada‑U.S. Treaty as it stood when these proceedings were commenced, the extradition judge must be satisfied that the offence for which extradition is sought is listed in the Schedule to the Treaty according to the law of the United States and of Canada.

The concept of an "extradition crime" is central to the task of the extradition judge. Under s. 18(1)(b) of the Act, the judge shall issue a warrant for committal where the evidence justifies, under Canadian law, the committal of a fugitive accused of an "extradition crime" as if the crime had been committed in Canada. This same standard of proof is provided for in Art. 10 of the Treaty. The extradition judge must receive any evidence tendered to show that the crime of which the fugitive is accused is an offence of a political character or is, for any other reason, not an extradition crime.

The combination of Arts. 1 and 2 of the treaty requires that the fugitive be charged with an offence in the United States that is listed in the schedule. If the same conduct amounts to different offences in the two countries, they must both be listed. This conclusion is confirmed by the interaction of Arts. 2 and 12. A fugitive cannot be prosecuted for any offence other than an offence listed in the Schedule. Since a fugitive extradited to the United States will only be prosecuted for offences against U.S. law, the offence which forms the basis of the extradition request must therefore be an offence listed in the Treaty according to U.S. law. The same reasoning applies where no treaty is relied on.

Article 8 of the Treaty, which provides that the determination that extradition should or should not be granted shall be made in accordance with the law of the requested state, does not preclude reference to the law of the requesting state. Proceedings can be conducted in accordance with Canadian law even though there is an issue as to what the law of the United States is on a particular point. Such a situation is not unique to the law of extradition.

A double listing requirement is consistent with both Art. 8 and the introductory words of the Canada‑United States Treaty. It ensures that Canada only extradites in situations where Canada could successfully request extradition if the same conduct had taken place here and the fugitive had fled to the United States.

Since an extradition crime here is one listed in the Schedule to the Treaty according to the laws of both Canada and the United States, the extradition judge must determine if this requirement has been met before issuing a warrant of committal under s. 18 of the Act. It is not for the requesting state to determine whether the act for which a fugitive is sought is a crime in the requesting state for which it may seek surrender under the treaty.

Although the extradition judge has a limited role, the concept of an "extradition crime" or a crime that falls within the appropriate treaty is central to his or her task. The extradition judge must determine that the double listing requirement is met. Section 15 of the Act requires the judge to receive evidence tendered to show that the crime of which the fugitive is accused is, for any reason, not an extradition crime.

Requiring determination of whether an offence is listed according to the requesting state's law would not unduly lengthen and unnecessarily complicate proceedings. Proof of foreign law is often a component of private law litigation and has not slowed such proceedings to a halt. Moreover in the majority of extradition cases, this issue will be uncontentious and will be resolved on the basis of the text of the provision under which the fugitive was charged or convicted and accompanying affidavits.

The issue in File No. 21751 was not whether the injured corporation was a member of the public but whether an accused could be convicted in the United States of using the telephone in connection with a scheme to defraud the public when the scheme was aimed at one corporation. No evidence was led on that issue which was an essential precondition to the issuance of a warrant under s. 18. The extradition judge was therefore without jurisdiction to issue the warrant.

Cases Cited

By La Forest J. (United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331)

Considered: Washington (State of) v. Johnson, 1988 CanLII 102 (SCC), [1988] 1 S.C.R. 327; R. v. Governor of Pentonville Prison, ex p. Sinclair, [1991] 2 A.C. 64; Government of Belgium v. Postlethwaite, [1987] 3 W.L.R. 365; In re Nielsen, [1984] A.C. 606; United States Government v. McCaffery, [1984] 2 All E.R. 570; 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; Buck v. The King (1917), 1917 CanLII 48 (SCC), 55 S.C.R. 133; United States v. Rauscher, 119 U.S. 407 (1886); United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469; In re Bellencontre, [1891] 2 Q.B. 122; In re Arton (No. 2), [1896] 1 Q.B. 509; referred to: United States v. Allard, 1991 CanLII 97 (SCC), [1991] 1 S.C.R. 861; R. v. Parisien, 1988 CanLII 85 (SCC), [1988] 1 S.C.R. 950; Re DeBaun (1888), 32 L.C. Jur. 281; R. v. Governor of Brixton Prison, ex p. Minervini, [1958] 3 All E.R. 318; Re United States of America and Smith (1984), 1984 CanLII 3510 (ON SC), 15 C.C.C. (3d) 16 (Ont. Co. Ct.), aff'd (1984), 1984 CanLII 3499 (ON SC), 16 C.C.C. (3d) 10 (Ont. H.C.); Re State of Wisconsin and Armstrong (1973), 1973 CanLII 2181 (FCA), 10 C.C.C. (2d) 271; Commonwealth of Puerto Rico v. Hernandez, 1973 CanLII 184 (SCC), [1975] 1 S.C.R. 228; Ex p. Piot (1883), 48 L.T. 120; Re Gross (1989), 2 C.C.C. 67; Ex parte Thomas (1917), 1917 CanLII 679 (NB CA), 28 C.C.C. 396; Johnson v. Browne, 205 U.S. 309 (1907); United States v. Sobell, 142 F.Supp. 515 (1956), aff'd 244 F.2d. 520 (1957), cert. denied 355 U.S. 873 (1957); United States v. Alvarez‑Machain, 119 L. Ed. 2d 441 (1992); Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779; Cotroni v. Attorney General of Canada, 1974 CanLII 210 (SCC), [1976] 1 S.C.R. 219.

By Sopinka J. (United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331 and United States of America v. Charles Julius McVey, File No. 21751) (dissenting)

Riley v. Commonwealth of Australia (1985), 62 A.L.R. 497; United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469; Buck v. The King (1917), 1917 CanLII 48 (SCC), 55 S.C.R. 133; United States v. Rauscher, 119 U.S. 407 (1886); Washington (State of) v. Johnson, 1988 CanLII 102 (SCC), [1988] 1 S.C.R. 327; Re United States of America and Smith (1984), 1984 CanLII 3510 (ON SC), 15 C.C.C. (3d) 16, aff'd (1984), 1984 CanLII 3499 (ON SC), 16 C.C.C. (3d) 10 (H.C.J.); United States v. Allard, 1991 CanLII 97 (SCC), [1991] 1 S.C.R. 861; In re Nielsen, [1984] A.C. 606; United States Government v. McCaffery, [1984] 2 All E.R. 570; Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536; Sinclair v. D.P.P., [1991] 2 All E.R. 366.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 6(1).

Criminal Code, R.S.C. 1970, c. C‑34, ss. 282, 324, 328 [now R.S.C., 1985, c. C‑46, ss. 321, 366, 380].

Extradition Act, R.S.C. 1970, c. E‑21, ss. 2 "extradition crime", "fugitive" or "fugitive criminal", 3, 15, 18(1)(a), (b), 19(b), 21, 22(a), (b), 34, Schedule I item 4, Schedule II Form Two.

Extradition Act, R.S.C., 1985, c. E‑23, s. 2(b).

Extradition Act, 1870 (U.K.), 33 & 34 Vict., c. 52, ss. 1, 3(1), 9, 10, 26.

Extradition Act, 1877, S.C. 1877, c. 25, ss. 1, 4.

Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, Arts. 1, 2(1), (2), (3), 8, 9(1), (2), (3), (4), 10(1), (2), 12(1), Schedule items 6, 12, 27.

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 (Ashburton-Webster Treaty), 1842, Can. T.S. 1952 No. 12, Art. X.

United States Code, Title 18, {ss} 1343.

Authors Cited

Blanchflower, Michael C. "Examination of the Law of the Requesting State in Extradition Proceedings" (1992), 34 Crim. L.Q. 277.

Blanchflower, Michael C. "Interpretation and Application of Extradition Crime in the Extradition Act" (1992), 34 Crim. L.Q. 158.

Blanchflower, Michael C. "State of Washington and Johnson" (1989), 31 Crim. L.Q. 197.

La Forest, Anne Warner. La Forest's Extradition To and From Canada, 3rd ed. Aurora: Canada Law Book, 1991.

La Forest, Gérard V. Extradition To and From Canada, 1st ed. New Orleans: The Hauser Press, 1961.

La Forest, Gérard V. Extradition To and From Canada, 2nd ed. With the assistance of Sharon A. Williams. Toronto: Canada Law Book, 1977.

Piggott, Sir Francis. Extradition: A Treatise on the Law Relating to Fugitive Offenders. London: Butterworths, 1910.

Shearer, Ivan Anthony. Extradition in International Law. Manchester: University Press, 1971.

United Kingdom. Royal Commission on Extradition, 1878. In Appendix to A British Digest of International Law, Part IV. Edited by Clive Parry. London: Stevens & Sons, 1965.

APPEAL (United States of America v. Charles McVey II, also known as Charles Julius McVey, File No. 21331) from a judgment of the British Columbia Court of Appeal (1988), 1988 CanLII 3078 (BC CA), 33 B.C.L.R. (2d) 28, 45 C.C.C. (3d) 413, [1989] 2 W.W.R. 673, dismissing an appeal from a judgment of Bouck J. (1988), 1988 CanLII 3128 (BC SC), 30 B.C.L.R. (2d) 197, granting an application for a writ of habeas corpus from an order of Dohm J. (1988), 4 W.C.B. (2d) 388, committing the accused for extradition. Appeal allowed, Lamer C.J. and Sopinka and McLachlin JJ. dissenting.

APPEAL (United States of America v. Charles Julius McVey, File No. 21751) from a judgment of the British Columbia Court of Appeal (1989), 1989 CanLII 7228 (BC CA), 40 B.C.L.R. (2d) 273, 52 C.C.C. (3d) 34, allowing an appeal from a judgment of Paris J. dismissing an application for a writ of habeas corpus with certiorari in aid from an order of Macdonell J. committing the accused for extradition. Appeal allowed, Lamer C.J. and Sopinka and McLachlin JJ. dissenting.

S. David Frankel, Q.C., and Cheryl J. Tobias, for the appellants.

Robert S. Anderson and David Lunny, for the respondent.

I & II

I United States of America v. Charles McVey II, also known as Charles Julius McVey (21331)

and between

IIUnited States of America v. Charles Julius McVey (21751)

The reasons of Lamer C.J. and Sopinka and McLachlin JJ. were delivered by

//Sopinka J.//

Sopinka J. (dissenting) -- These appeals concern the requirements for extradition pursuant to the Extradition Act, R.S.C. 1970, c. E‑21, now R.S.C., 1985, c. E‑23 ("the Act") and the Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3 ("the Treaty"). Specifically, the issue is whether it must be established before the extradition judge that the offence for which extradition is sought is listed in the Treaty according to the law of the United States as well as according to Canadian law. A subsidiary issue, if "double listing" is required, is whether the Court of Appeal erred with respect to one of the indictments which is the subject of this appeal, in concluding that the offence charged against the respondent was not listed in the Treaty according to the law of the United States.

I cannot agree with the interpretation of the Act and the Treaty which my colleague Justice La Forest proposes in his reasons. I also reach a different result. The facts and history of the proceedings are fully dealt with in the reasons of my colleague and I am able to proceed directly to the issues.

I. Issues

The United States appeals from both judgments of the British Columbia Court of Appeal. The principal issue, which arises on both appeals, can be stated as follows:

Before a warrant of committal is issued by an extradition judge, must it be established that the offence for which extradition is sought is one that is listed in the Schedule to the Treaty according to the law of the United States as well as according to Canadian law?

This is the only basis on which the United States challenges the Court of Appeal's decision in relation to the Los Angeles charges. With respect to the San Jose charges, however, if this question is answered in the affirmative, a second issue arises, namely, whether the Court of Appeal erred in concluding that the offence charged against the respondent did not fall within the crimes listed in the Schedule to the Treaty according to the law of the United States. Given my resolution of these two issues, I do not find it necessary to deal with a number of additional issues raised by the respondent.

II. Relevant Statutory and Treaty Provisions

Extradition Act, R.S.C. 1970, c. E‑21, now R.S.C., 1985, c. E‑23

2. In this Act

"extradition crime" may mean any crime that, if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in Schedule I; and, in the application of this Act to the case of any extradition arrangement, "extradition crime" means any crime described in such arrangement, whether or not it is comprised in that Schedule;

"fugitive" or "fugitive criminal" means a person being or suspected of being in Canada, who is accused or convicted of an extradition crime committed within the jurisdiction of a foreign state;

3. In the case of any foreign state with which there is an extradition arrangement, this Part applies during the continuance of such arrangement; but no provision of this Part that is inconsistent with any of the terms of the arrangement has effect to contravene the arrangement; and this Part shall be so read and construed as to provide for the execution of the arrangement.

4. The judge shall receive, in like manner, any evidence tendered to show that the crime of which the fugitive is accused or alleged to have been convicted is an offence of a political character, or is, for any other reason, not an extradition crime, or that the proceedings are being taken with a view to prosecute or punish him for an offence of a political character.

5. (1) The judge shall issue his 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 his committal for trial, if the crime had been committed in Canada.

Extradition Treaty between Canada and the United States, Can. T.S. 1976 No. 3:

Article 1

Each Contracting Party agrees to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with, or convicted of, any of the offenses covered by Article 2 of this Treaty committed within the territory of the other, or outside thereof under the conditions specified in Article 3(3) of this Treaty.

Article 2

(1) Persons shall be delivered up according to the provisions of this Treaty for any of the offenses listed in the Schedule annexed to this Treaty, which is an integral part of this Treaty, provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.

(2) Extradition shall also be granted for attempts to commit, or conspiracy to commit or being a party to any of the offenses listed in the annexed Schedule.

(3) Extradition shall also be granted for any offense against a federal law of the United States in which one of the offenses listed in the annexed Schedule, or made extraditable by paragraph (2) of this Article, is a substantial element, even if transporting, transportation, the use of the mails or interstate facilities are also elements of the specific offense.

Article 8

The determination that extradition should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use all remedies and recourses provided by such law.

Article 12

(1) A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted nor be extradited by that State to a third State unless:

(i)He has left the territory of the requesting State after his extradition and has voluntarily returned to it;

(ii)He has not left the territory of the requesting State within thirty days after being free to do so; or

(iii)The requested State has consented to his detention, trial punishment for an offense other than that for which extradition was granted or to his extradition to a third State, provided such other offense is covered by Article 2.

III. Analysis

1. Double Criminality and Listing

The Approach

The extradition of fugitive criminals from Canada is governed by the Extradition Act. As a result of s. 3 of the Act, where there is an extradition arrangement, which includes a treaty, in place with any foreign state, the Act must be read and construed to provide for the execution of the arrangement, and the arrangement takes precedence over any provision of the Act that is inconsistent with it. Thus the resolution of the issue in this case turns on an analysis of the relevant provisions of the Act and the Canada‑United States Treaty. The Court's task is not to establish what it would consider to be the ideal extradition arrangement between Canada and the United States, but to interpret the scheme existing at the time when these extradition proceedings were commenced. That the correct approach is treaty‑specific has been recognized by courts in several jurisdictions. In Riley v. Commonwealth of Australia (1985), 62 A.L.R. 497 (H.C. Aust.), Gibbs C.J. observed at p. 504:

It was held by the Supreme Court of the United States in Factor v. Laubenheimer (1933) 290 US 276, 78 Law Ed 315, that the nature and extent of the right to demand extradition and the duty to extradite depend on the terms of the Treaty which creates the right and the duty rather than on the principles of international law: see at p 287 (p 320 of Law Ed). Lord Diplock appears to have proceeded on the basis of a similar view in Re Nielsen, [1984] A.C. 606 at pp. 624‑5. [Emphasis added.]

We must not lose sight of the fact that extradition treaties, although they are arrangements between governments, affect the liberty of individuals. Many of these individuals are citizens of Canada who, by virtue of s. 6(1) of the Canadian Charter of Rights and Freedoms, have the constitutional right to remain in Canada unless taken away by law which meets the test of s. 1 of the Charter. See United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469. If the parties to the treaty are of the view that the arrangement is not achieving its purpose in bringing criminals to justice, they are free to amend the treaty. In this regard, I note that, since this appeal was heard, amendments to the Canada‑United States Treaty replacing the Schedule of offences with a provision for extradition for "conduct which constitutes an offence punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment", have come into force (Can. T.S. 1991 No. 37, Art. 1).

The Scheme Established by the Extradition Act and the Canada‑United States Treaty

The essence of the appellant's position which my colleague accepts is this. Extradition from Canada is exclusively a creature of statute and the treaty. These instruments define under what conditions a person is extraditable. There are basically two requirements. It must be established that the fugitive is charged with or has been convicted of an offence that is a listed crime under the law of (1) the requesting state and (2) the requested state. The Act provides for a hearing to determine whether the fugitive is extraditable, but while it can determine whether the second requirement is met, it cannot deal with the first requirement. The determination of this aspect of extraditability is exclusively the prerogative of authorities in the prosecuting state. This strikes me as somewhat unusual in that a citizen of Canada who is accused of a crime that may not exist in the United States must suffer apprehension and be sent out of the country before he or she is able to address the first of the two requirements stipulated by the treaty. I have no doubt that such a result can be achieved by appropriate language. In my opinion, however, this treaty cannot bear this interpretation.

The task of the extradition judge faced with a request for extradition by a foreign state is set out in s. 18 of the Act. Under s. 18(1)(b), the judge shall issue a warrant for committal in the case of a fugitive accused of an "extradition crime", if such evidence is produced as would, according to the law of Canada, justify his committal for trial, if the crime had been committed in Canada. This same standard of proof is provided for in Article 10 of the Treaty. A "fugitive" is defined in s. 2 of the Act as a person in or suspected of being in Canada, who is accused or convicted of an extradition crime committed within the jurisdiction of the foreign state. Section 15 provides that the judge shall receive any evidence tendered to show that the crime of which the fugitive is accused is an offence of a political character or is, for any other reason, not an extradition crime. The centrality of the concept of an "extradition crime" to the task of the extradition judge is thus evident. Under s. 18 of the Act, it is only with respect to such crimes that an extradition judge can issue a warrant of committal.

"Extradition crime" is defined in s. 2. Where there is an applicable extradition arrangement, it means any crime described in such arrangement. It is therefore necessary to turn to the terms of the Treaty. In art. 1, the parties agree to extradite persons who have been charged with, or convicted of, any of the offences covered by art. 2. It is clear that in the case of an individual being sought for extradition from Canada to the United States, the offence in respect of which he has been charged or convicted is an offence against United States law. This is confirmed by reference to the warrant of committal that must be completed by an extradition judge when the requirements of s. 18 are satisfied (Schedule II, Form Two). It states in part:

. . . and forasmuch as I have determined that he should be surrendered in pursuance of the said Act, on the ground of his being accused (or convicted) of the crime of ................... within the jurisdiction of .................. .

Therefore "offenses covered by Article 2 of this Treaty" must encompass the requirement that they are covered by Art. 2 according to United States law. Article 2(1) provides that persons shall be delivered up according to the terms of the Treaty for:

... any of the offenses listed in the Schedule annexed to this Treaty... provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.

The combination of Arts. 1 and 2 therefore requires that an offence of which the fugitive is accused be listed in the Schedule in order to found a request for extradition. Since the fugitive is accused of an offence under United States law, that offence must be listed in the schedule. If the same conduct amounts to different offences in the two countries, they must both be listed.

The interaction of Arts. 2 and 12 of the treaty confirms this conclusion. Article 12 prevents the prosecution of a fugitive for any "offense other than that for which extradition has been granted". This provision constitutes an important protection for the fugitive. Article 2(1) states that person shall only be delivered up "for any of the offenses listed in the Schedule". The combination of these two provisions means that a fugitive cannot be prosecuted for any offence other than an offence listed in the Schedule. Since a fugitive extradited to the United States will only be prosecuted for offences against United States law, this leads to the conclusion that the offence which forms the basis of the extradition request must be an offence which is listed in the Treaty according to the law of the United States.

There is nothing in Buck v. The King (1917), 1917 CanLII 48 (SCC), 55 S.C.R. 133, or United States v. Rauscher, 119 U.S. 407 (1886), which is inconsistent with these observations. The passages from those cases relied on by my colleague require that the accused be tried with respect to the specific offence with which he was charged, not the "offence for which his surrender was made" as suggested by my colleague. It is apparent that the offences are those in the requesting state. Thus, in Buck v. The King, in which Canada was the requesting state, the accused could only be tried for the offence for which he was extradited from the United States, that offence having been identified by its Canadian label, a charge under s. 414 of the Criminal Code.

The same reasoning would apply where no treaty is relied on. Under s. 18(1)(b), the judge must determine whether the fugitive is accused of an extradition crime as defined in s. 2 of the Act. That definition refers to "any crime that, if committed in Canada, or within Canadian jurisdiction would be one of the crimes described in Schedule I" (emphasis added). "Any crime" must refer to the crime of which the fugitive is accused. If it is not a crime, then it is not an extradition crime, and the fact that it satisfies the balance of the definition is irrelevant.

The appellant submits that this conclusion runs contrary to art. 8 of the Treaty which provides that the determination that extradition should or should not be granted shall be made in accordance with the law of the requested state, in this case, Canada. Similar language is found in ss. 18 and 34 of the Act. I do not agree that this provision precludes reference to the law of the requesting state. Proceedings can be conducted in accordance with Canadian law even though there is an issue as to what the law of the United States is on a particular point. Such a situation is not unique to the law of extradition. Moreover it is evident from the rest of the Treaty that these provisions do not preclude reference to the law of the requesting state. For example, Art. 2(1) requires reference to the law of both states in order to ascertain that an offence is punishable by greater than one year's imprisonment in each state. In order to make this determination, an extradition judge must first determine what particular offence the fugitive's alleged conduct constitutes in each state. It would be strange for a judge to find that an offence was "punishable by laws" of the requesting state when in reality no offence in law existed. A further example is provided by art. 2(3) which states:

(3) Extradition shall also be granted for any offense against a federal law of the United States in which one of the offenses listed in the annexed Schedule . . . is a substantial element . . . .

A determination of whether the requirements of this article are met clearly requires analysis of the United States law in question in order to determine whether the listed offence is a substantial element of it. Thus I would conclude that a double listing requirement is not inconsistent with art. 8.

Finally, I note that a double listing requirement is consistent with the introductory words of the Canada‑United States Treaty which provide that:

Canada and the United States of America, desiring to make more effective the co‑operation of the two countries in the repression of crime by making provision for the reciprocal extradition of offenders, agree as follows: [Emphasis added.]

A double listing requirement ensures that Canada only extradites in situations where Canada could successfully request extradition if the same conduct had taken place here and the fugitive had fled to the United States.

Relevant Authorities

Although the precise issue of double listing was not before the Court in Washington (State of) v. Johnson, 1988 CanLII 102 (SCC), [1988] 1 S.C.R. 327, Wilson J. writing for the majority, at p. 339, framed the issue in that case in terms consistent with my conclusion that an extradition crime must be listed in the Treaty according to the law of both the United States and Canada:

The central issue to be addressed in determining the nature of the double criminality rule is whether the rule requires the elements of the extradition crime to be the same in the requesting and the requested state or whether it merely requires the act charged to be a listed crime in both countries. [Emphasis added.]

Wilson J. concluded at p. 342 that the double criminality rule was "conduct‑based" by which she meant that an exact identity between the offence charged in the requesting state and the Canadian offence was not required, and that:

. . . if it could be established that the conduct of the fugitive constituted the listed offence of theft in both Canada and Washington the double criminality requirement would be met. [Emphasis added.]

In coming to this conclusion Wilson J. cited, with apparent approval, the definition of extradition crime given by G. V. La Forest in his text Extradition To and From Canada (2nd ed. 1977), at p. 42:

An extradition crime may broadly be defined as an act of which a person is accused, or has been convicted, of having committed within the jurisdiction of one state that constitutes a crime in that state and in the state where that person is found, and that is mentioned or described in an extradition treaty between those states under a name or description by which it is known in each state. This definition can be broken down into several propositions:

(1)the act charged must have been committed within the jurisdiction of the demanding state;

(2)it must be a crime in the demanding state;

(3)it must also be a crime in the requested state; and

(4)it must be listed in an extradition treaty between the two states under some name or description by which it is known in each state. [Emphasis added.]

In the most recent edition of that work, A. W. La Forest, La Forest's Extradition to and From Canada (3rd ed. 1991), the above definition is restated (at p. 49). The fourth proposition is expanded upon as follows, at p. 74:

In addition to satisfying the requirement that the act charged must be a crime in both countries, it must also amount to a crime listed in the treaty between the two countries, and if the act charged falls within the definition of different crimes in the two countries, the names of the crimes in both countries must appear in the treaty.

The author also refers to the decision of the Ontario County Court in Re United States of America and Smith (1984), 1984 CanLII 3499 (ON SC), 15 C.C.C. (3d) 16 (aff'd (1984), 16 C.C.C. (3d) 10 (H.C.J.)), in which Borins Co. Ct. J. stated at p. 27:

If the conduct discloses an offence established by the law of Canada, and if that offence is among the offences enumerated in the Schedule to the extradition treaty, and if the offence alleged to have been committed contrary to the laws of the demanding State is also enumerated in the Schedule, then a case for extradition has been made out. [Emphasis added.]

There is thus support, both academic and judicial, for my conclusion that double listing is required under this Treaty. A number of other cases which might appear to support the contrary conclusion require comment. In United States v. Allard, 1991 CanLII 97 (SCC), [1991] 1 S.C.R. 861, La Forest J. writing for the Court, drew attention to s. 34 of the Act which provides:

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.

He noted that according to its terms s. 34 applies only to crimes listed in Schedule I of the Act, however he stated that the general principle articulated by this provision was apparent and that it would be odd if a different rule were applied to crimes listed in Schedule I than those mentioned in a treaty. In my view, neither s. 34 nor Allard address the issue of whether double listing is required under the Canada‑United States Treaty. The issue under consideration in that case was whether the treaty applied to a crime which did not exist under Canadian law when it was committed in the requesting state. The Court's focus was therefore on what was required in terms of the Canadian law. The question of whether the alleged conduct also had to constitute a listed crime according to United States law was not considered since it was not disputed that the alleged conduct constituted the listed offence of hijacking a plane according to United States law.

The other cases which require consideration are the decisions of the House of Lords in In Re Nielsen, [1984] A.C. 606, and United States Government v. McCaffery, [1984] 2 All E.R. 570. In Nielsen, the House of Lords held that under the Extradition Act, 1870 in order to determine whether alleged conduct constitutes an "extradition crime", a magistrate need only inquire as to whether the conduct, according to English law, fell within one of the crimes listed in the schedule to the Act, and had no jurisdiction to inquire into or receive evidence of the substantive criminal law of the foreign state in which the conduct was committed. However in reaching this conclusion, Lord Diplock recognized that the issue turned on the construction of the Act and/or Treaty in question. He stated at pp. 618 and 621:

[T]he definitions of "extradition crime", "fugitive criminal", "fugitive criminal of a foreign state" and "warrant" in section 26 of the Extradition Act 1870, read in conjunction with the introductory words of Schedule 1 which require the description of each listed crime to be construed according to the law existing in England at the date of the alleged crime, are all‑important.

In the principal treaty with Denmark, the list of crimes in respect of which surrender of fugitive criminals will be granted is confined to those contained in the 1870 list, and it was for crimes within this list alone that the Secretary of State's orders to proceed in the instant case were made. That is the reason why the magistrate had not, in my view, any jurisdiction in the instant case to make any findings of fact as to Danish substantive criminal law or to hear expert evidence about it.

He made it clear, at p. 621, that in the face of a different Act or Treaty, the opposite conclusion was possible:

It would have been otherwise if the conduct of which Nielsen was accused in Denmark had not been covered by any description of an English crime in the 1870 list but had been added to the list of extradition crimes by later Extradition Acts. For, in that event, it would only have been brought into the list of extradition crimes applicable to fugitive criminals from Denmark by the supplementary treaty of 1936 of which the relevant provision is the addition to article I of the principal treaty of the words:

"Extradition may also be granted at the discretion of the High Contracting Party applied to in respect of any other crime or offence for which, according to the laws of both [emphasis by Lord Diplock] of the High Contracting Parties for the time being in force, the grant may be made."

Had it been necessary for the Danish Government to rely upon the supplementary treaty it would have been necessary for the magistrate to hear evidence of Danish law in order to satisfy himself that the conduct of the accused in addition to constituting in English law an extradition crime included among those subsequently added to the 1870 list, also constituted an offence that was treated as an extradition crime in Denmark.

Whether in an accusation case the police magistrate has any jurisdiction to make findings as to the substantive criminal law of the foreign state by which the requisition for surrender of a fugitive criminal is made will depend upon the terms of the arrangement made in the extradition treaty with that state. Some treaties may contain provisions that limit surrender to persons accused of conduct that constitutes a crime of a particular kind (for example, one that attracts specified minimum penalties) in both England and the foreign state. Accusation cases arising under extradition treaties that contain this kind of limitation I shall call ``exceptional accusation cases''. In an exceptional accusation case it will be necessary for the police magistrate to hear expert evidence of the substantive criminal law of the foreign state and make his own findings of fact about it. [Emphasis added.]

In McCaffery the House of Lords applied its judgment in Nielsen to a case concerning the extradition treaty between the United Kingdom and the United States. Lord Diplock held that this treaty brought the proceedings within the category of exceptional accusation cases since it expressly required that the offence be punishable under the laws of both parties by imprisonment for more than a year or by the death penalty, and that the offence constitute a felony under United States law. Evidence of United States law on these two points was thus required. Evidence was not required that the alleged offences were listed under the Extradition Acts 1870 to 1935 or the United Kingdom‑United States Treaty according to American law, however this must be considered in light of Art. III of that Treaty which provides:

(1) Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offence, if:... (b) the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub‑paragraph (1)(a) of Article II...

Thus, in my view, these English cases can be distinguished on their facts. Both cases involved provisions that expressly stated that the law to apply in determining whether an offence was extraditable was English law. No such provision appears in the Canada‑United States Treaty, and as I have discussed supra, several provisions of that Treaty suggest that to constitute an extradition crime thereunder, the alleged conduct must fall within one of the listed offences according to United States law.

Jurisdiction of the Extradition Judge

Having concluded that under the extradition arrangement in place between Canada and the United States when these proceedings were commenced, an extradition crime is one which is listed in the Schedule to the Treaty according to the laws of both Canada and the United States, it would seem to flow logically that this requirement must be determined by an extradition judge before a warrant of committal can be issued under s. 18 of the Act. However it has been suggested that an extradition judge has no jurisdiction to engage in this inquiry. In La Forest's Extradition to and From Canada, 3rd ed., after reproducing a passage from Re United States of America and Smith, supra, on the task of the extradition judge, the author writes at p. 54:

A slight, but important, caveat must be added. The clause indicating that the crime as known in the requesting state must appear in the treaty is correct, but the statement should not be taken to mean that this is a matter to be determined by the extradition judge. That would require proof of foreign law, which is beyond the jurisdiction of the extradition judge: (Re Neilsen, [1984] 1 A.C. 606 (H.L.)). Rather, it is for the requesting state to determine whether the act for which a fugitive is sought is a crime in that state for which it may seek surrender under the treaty. All the Act empowers the extradition judge to do is to determine whether the act charged is an extradition crime according to the law of Canada.

I cannot agree with this position. In Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, La Forest J. writing for the majority, explained the function of the extradition judge at p. 553:

[T]he modest function of an extradition hearing... (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. [Emphasis added.]

In La Forest's Extradition To and From Canada, 2nd ed., in the passage at p. 42 to which I referred earlier which was approved by Wilson J. in Washington (State of) v. Johnson, supra, at p. 340, "extradition crime" is defined to include as two of its four elements the following:

(2) it must be a crime in the demanding state;

(4)it must be listed in an extradition treaty between the two states under some name or description by which it is known in each state.

I am in full agreement that the extradition judge has a limited role. However, as these passages make clear, the concept of an "extradition crime" or a crime that falls within the appropriate treaty is central to his or her task. These passages also affirm that in the context of the Canada‑United States Treaty, "extradition crime" includes the requirement that the crime be an offence in the United States and listed in the Treaty according to United States law. If that requirement is not met, then the extradition judge has no jurisdiction to issue a warrant for committal under s. 18 of the Act. That the extradition judge must determine that the double criminality and listing requirements are met is confirmed by s. 15 of the Act which requires the judge to receive evidence tendered to show that the crime of which the fugitive is accused is, for any reason, not an extradition crime.

Nor is Nielsen authority for the general proposition that proof of foreign law is beyond the jurisdiction of the extradition judge. On the contrary, the House of Lords in Nielsen and McCaffery specifically acknowledged that under some Acts and Treaties an extradition judge may be required to inquire into and hear evidence of the substantive criminal law of the requesting state. While some doubt may have been cast on this position in England by the recent decision in Sinclair v. Director of Public Prosecutions, [1991] 2 All E.R. 366 (H.L.), that case reiterates that one of the functions of the extradition judge is to determine that he or she is dealing with an "extradition crime" (at p. 378). Where an "extradition crime" includes a requirement relating to the law of the requesting state, I do not see how it can be beyond the jurisdiction of the extradition judge to consider such law.

Pragmatic Considerations

The final argument proffered against requiring extradition judges to determine whether an offence is listed according to the requesting state's law is that it would unduly lengthen and unnecessarily complicate and delay proceedings. This argument is well summarized in the following passage from La Forest's Extradition to and From Canada, 3rd ed., at p. 170:

It could slow the system of extradition proceedings to a halt if foreign expert witnesses had to be called on a regular basis to ensure that extradition judges become "instant experts" in foreign law, especially if the crime occurred in a country with a legal system and language different from our own. Documentary evidence might suffice in some cases, for it has been held that proof can be made by authenticated affidavits or depositions in the same manner as the facts of the case are established. But this is not always satisfactory ....

Quite apart from the fact that I have concluded that an extradition judge must engage in such an inquiry in order to determine whether he can issue a warrant under s. 18, I do not find these concerns compelling. Proof of foreign law is often a component of private law litigation. This practice has not slowed such proceedings to a halt. Moreover in the majority of extradition cases, this issue will be uncontentious and will be resolved on the basis of the text of the provision under which the fugitive was charged or convicted and accompanying affidavits. The current practice in Canada, which has prevailed for many years, is that the extradition judge examines the law with respect to the offence alleged to have been committed in the requesting state. See M. C. Blanchflower, "Examination of the Law of the Requesting State in Extradition Proceedings" (1992), 34 Crim L.Q. 277, and "Interpretation and Application of Extradition Crime in the Extradition Act" (1992), 34 Crim. L.Q. 158, at pp. 173‑74. There is no evidence to support the conclusion that this practice has slowed extradition proceedings to a halt. Furthermore, the practice appears to be the same in the United States when Canada is the requesting state. See Buck v. The King, supra, as an example. At page 149, the judgment of Anglin J., on which my colleague relies, refers to the fact that the evidence before the Extradition Commissioner in the United States included "proof of the Canadian law".

Conclusion

I would therefore conclude that under the Canada‑United States Treaty as it stood when these proceedings were commenced, it was necessary to establish before the extradition judge that the offence for which extradition was sought was listed in the Schedule to the Treaty according to the law of the United States as well as according to Canadian law. This is a sufficient basis on which to dismiss the United States' appeal on the Los Angeles charges (Appeal No. 21331). However in relation to the San Jose charges (Appeal No. 21751), the United States makes an alternative argument, namely that the Court of Appeal erred in ruling that the offence charged against the respondent did not fall within the Treaty according to the law of the United States. I therefore turn to this issue.

2.Are the San Jose Charges Offences Listed in the Treaty According to U.S. Law?

The San Jose charges were laid under 18 U.S.C. {ss} 1343, which provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

The respondent was charged that he did with others:

. . . knowingly devise and intend to devise and participate in a scheme and artifice to defraud the Saxpy Computer Corporation of:

A. its right to the exclusive use of its property, to wit, confidential, proprietary information regarding the design and operation of the Saxpy Matrix‑1 Super Computer, and

B. its right to the loyal, honest, faithful and promised services of its employees, free from fraud, stealth and self‑dealing,

and that:

. . . for the purpose of executing the aforesaid scheme and attempting to do so, did knowingly transmit and cause to be transmitted in interstate and foreign commerce by wire communication... certain signs, signals and sounds, to wit, a telephone call.

In the courts below, the appellant took the position that the charges fell within paragraph 27 of the Schedule to the Treaty according to U.S. law:

27.Use of the mails or other means of communication in connection with schemes devised or intended to deceive or defraud the public or for the purpose of obtaining money or property by false pretenses.

In his affidavit, the expert witness called by the appellant, Mr. Leland Altschuler, had initially taken the position that the crime alleged in the indictment came within paragraph 12 of the Schedule:

12. Obtaining property, money or valuable securities by false pretenses or by threat or force or by defrauding the public or any person by deceit or falsehood or other fraudulent means, whether such deceit or falsehood or any fraudulent means would or would not amount to a false pretense.

However, as the Court of Appeal stated:

During his cross‑examination Altschuler appeared to abandon clause 12. Amongst other things he said that "I believe the best paragraph would be number 27 to the Treaty and schedule". Subsequent to the hearing of the appeal, we enquired whether the United States no longer placed any reliance on clause 12 of the Schedule. By letter dated October 31, 1989 Miss Tobias advised us that "the [United States] relies exclusively on Item 27 of the Schedule to the Treaty."

The issue then is whether the offence charged against the respondent falls within paragraph 27 according to American law. Paragraph 27 requires that the scheme be to defraud "the public". This can be contrasted with paragraph 12 which refers to "the public or any person". In this case, the respondent was charged with engaging in a scheme to defraud a particular individual, the Saxpy Computer Corporation. In cross‑examination, Mr. Altschuler was questioned as to whether the offence charged included as an element, defrauding the public:

Q.Now, Mr. Altschuler, with regards to the crime charged in part 5, it alleges the crime against the United ‑‑ citizens of United States of America the Saxpy Corporation, is that not so?

A.The victim, if you will, in this crime is the Saxpy Computer Corporation. The action, of course, is prosecuted by the United States.

Q.No, but it alleges a crime, a fraud against the Saxpy Computer Corporation, a private individual?

A.Yes. Well, we would say that Saxpy is the victim of the fraud, but I suspect we are saying the same thing.

Q.Indeed. It is not a fraud against the public of the United States, it is a fraud against an individual in the United States, is that not so, sir?

A.Yes.

Q.Paragraph 27, sir, of the schedule requires the: "Use of mails or other means of communication in connection with schemes devised or intended to deceive or defraud the public..." If I stop there, you will agree with me that that doesn't apply here because this wasn't a crime to defraud the public?

A.That's right, this was not a crime to defraud the public.

Later in his testimony Mr. Altschuler gave his opinion that Saxpy was a member of the public. Macdonell J. reasoned that this was sufficient to bring the charge within paragraph 27 of the Schedule. I agree with the Court of Appeal that the issue is not whether Saxpy was a member of the public but whether an accused could be convicted in the United States of using the telephone in connection with a scheme to defraud the public when the scheme was aimed at one person, Saxpy. As the Court of Appeal held, Mr. Altschuler expressed no opinion on that issue although the question was put to him in various ways. There was thus no evidence on an essential precondition to the issuance of a warrant under s. 18. The extradition judge was therefore without jurisdiction to issue the warrant.

IV. Disposition

I would accordingly dismiss both appeals.

I

United States of America v. Charles McVey II, also known as Charles Julius McVey (21331)

The judgment of La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by

//La Forest J.//

La Forest J. -- The issue in this appeal is whether, at an extradition hearing for the surrender of a fugitive who has been accused of having committed a crime in the state requesting his surrender, it is necessary to prove that the act charged constitutes a crime listed in the extradition treaty under the law of the requesting state.

Facts

The respondent was indicted by a grand jury in the United States District Court for the Central District of California on March 3, 1983. The indictment charged the respondent with 23 offences, but only 11 are relevant for our purposes, namely:

a. one count of conspiracy to:

(1) . . . knowingly export high-technology electronic components . . . from the United States to the U.S.S.R. without having first obtained the required validated export license from the United States Department of Commerce, . . . and

(2) . . . knowingly and willfully submit false statements to the U.S. Department of Commerce and the U.S. Customs Service . . .

b. one count that he:

. . . knowingly and willfully made and caused to be made a false, fictitious and fraudulent statement and representation as to material facts within the jurisdiction of the United States Customs Service and the United States Department of Commerce . . . in that [he] filed and caused to be filed with the United States Customs Service and the United States Department of Commerce a Shipper's Export Declaration which stated that the commodities exported were generators, parts and accessories and had an ultimate destination of Zurich, Switzerland whereas in truth and fact, as [he] well knew, the commodities exported were, among others, three Memorex 677 disc drive and a Digital Equipment Corporation SP 11-FC PDP 11/70 Spares Kit and the ultimate destination of the commodities was the U.S.S.R.

and nine other counts that were identical except for the offence dates and the commodities exported.

In short, the respondent was charged with one count of conspiracy to export high-technology equipment to the U.S.S.R. and ten counts of having made false statements to the United States Department of Commerce and the United States Customs Service to effect such export.

The United States began extradition proceedings in Canada to secure the respondent's surrender, and the latter was arrested pursuant to a warrant of apprehension issued in respect of the above charges on February 4, 1988 by Spencer J. of the Supreme Court of British Columbia, pursuant to s. 10 of the Extradition Act, R.S.C. 1970, c. E-21 (now R.S.C., 1985, c. E-23). An extradition hearing then took place before Dohm J. of the same court. In his view, the requirements for committal under the Act were fulfilled. There was evidence identifying the respondent as the person named in the United States indictment; there was evidence upon which a properly instructed jury could convict; the conduct of the respondent would, in Canada, constitute the crime of forgery as defined in ss. 324 and 282 of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C-46, ss. 366 and 321) and the crime of forgery is an extradition crime in Canada because it is listed in the treaty between Canada and the United States. It was, in Dohm J.'s view, sufficient that the act charged constituted forgery as interpreted by the law of Canada. He rejected the argument that it was also necessary for the United States to prove that the crime was listed in the treaty under the law of the United States. He therefore issued a warrant of committal on April 8, 1988.

The respondent, however, filed a petition for a writ of habeas corpus, and on June 17, 1988, Bouck J. granted the application ((1988), 1988 CanLII 3128 (BC SC), 30 B.C.L.R. (2d) 197) In his view, committal could not be ordered because the offences charged were not "extradition crimes" within the meaning of the Act because it had not been proved that they were listed in the treaty according to the law of the United States.

The British Columbia Court of Appeal agreed with Bouck J. ((1988), 1988 CanLII 3078 (BC CA), 33 B.C.L.R. (2d) 28). It felt bound by this Court's decision in Washington (State of) v. Johnson, 1988 CanLII 102 (SCC), [1988] 1 S.C.R. 327, to hold that the crimes for which extradition was sought must constitute offences listed in the schedule both according to the law of Canada and of the United States.

Leave to appeal to this Court was granted on June 8, 1989 ([1989] 1 S.C.R. xvi), and the appeal was heard on October 30, 1991. The respondent has now voluntarily left the country but because of the importance of the issue and because he may arguably return to Canada, the appellant still seeks the Court's decision on the issue. The respondent raised a number of secondary issues, but these were summarily dismissed from the Bench.

General Considerations

During the course of the argument and in the courts below, reference was made to abstract principles and "rules" of extradition such as double criminality, specialty and reciprocity as if they had independent force. The arguments and the reasons in the courts below at times also evidenced some misunderstanding about the respective function of extradition treaties and statutes, and consequently of the separate roles of the executive and the courts both of this country and the requesting state. This interplay of treaty and statute was at times contrasted, in my view incorrectly, with that prevailing in Great Britain. It seems useful then to get down to basics.

To begin with, it is important to remember that under customary international law states have no obligation to surrender fugitives from justice to other states; see United States v. Allard, 1991 CanLII 97 (SCC), [1991] 1 S.C.R. 861, at p. 865. To create such obligation, it is necessary to enter into treaties. So far as the international obligations of Canada (and for that matter other states) are concerned, therefore, they must be found within the confines of the treaties. Of course, some assistance may be found in the practices followed by other states and there is considerable similarity in the practices of different states. In discussing these practices, international writers have for convenience identified certain principles or "rules" such as double criminality and so on. These are convenient labels, and this international practice, as noted in Allard (at p. 865), "may no doubt have a certain value in interpreting the law", but in the end the international duty must be found in the terms of the appropriate treaty. This was the position taken by this Court in R. v. Parisien, 1988 CanLII 85 (SCC), [1988] 1 S.C.R. 950.

Equally these principles and rules do not exist at common law. At common law, the executive had no power to extradite criminals. Nor would a treaty obligation undertaken by Canada alone authorize the executive to do so. A treaty does not alter the law of the land. A statute is required to implement it. From the standpoint of domestic law, therefore, extradition is a creature of statute. The domestic law of this country is to be found in the Extradition Act; see also Allard, supra, at p. 865.

Canada's international obligations, then, are to be found in the treaty. The purpose of the Act is to ensure that the law of the land conforms to the treaty. It is to the former instrument that the courts must turn to find their authority in extradition matters. The genesis of the present Act may be traced to the first British statute of general application on the subject, The Extradition Act, 1870 (U.K.), 33 & 34 Vict., c. 52. The Act was made applicable to Canada pursuant to s. 17, but because s. 27 retained previous Canadian legislation, it led to great confusion in Canada, and Canada took steps to provide for its own extradition procedure, The Extradition Act, 1877, S.C. 1877, c. 25; see La Forest's Extradition To and From Canada (3rd ed. 1991), by Anne W. La Forest, at pp. 5-6 (hereafter "La Forest's Extradition, 3rd ed.").

The Canadian Act of 1877 was very closely modelled on the British Act of 1870. The changes for the most part were to the order in which the provisions appear and some inconsequential verbal changes; the comparable provisions are noted in La Forest's Extradition, 3rd ed., at pp. 273 et seq. This is scarcely surprising. The Act was intended to implement treaties entered into by Great Britain, many of which, I may say, continue to apply to Canada. The fact that Canada could not then enter into treaties accounts for the major difference of any substance between the British and the Canadian statute. The British statute provided that the crimes for which surrender might be made were those listed in a schedule to the Act. Whenever a treaty was entered into providing for the surrender of a crime not so listed, the schedule was amended. The Canadian Act retained the schedule, but since Canada did not negotiate the treaties and was far more open towards extradition than the British, it simply provided for the addition of new crimes in treaties by defining (s. 1, now s. 2) extradition crimes as including not only those in the schedule but others set forth in a treaty. This is purely a matter of procedure, however, and does not effect any substantial change. As was noted in Allard, supra, at p. 867: "It would be odd if a different rule were applied to crimes listed in Schedule I than to those mentioned in the treaty only." There, it will be remembered, the Court applied a provision of the Act to crimes that appeared in the treaty only, even though the provision was by its terms restricted to crimes mentioned in Schedule I.

A second, but related, difference flowing from Canada's incapacity to negotiate treaties at the inception of our present scheme of extradition is found in s. 4 of The Extradition Act, 1877 (now s. 3). In Great Britain, a treaty only came into effect when it was applied by Order in Council. In Canada, it was provided that the treaties would apply during their continuance. But given the fact that Great Britain, not Canada, negotiated the treaties, provisions could be inserted in treaties that might not precisely square with the procedure set forth in the Canadian Act. "For the avoidance of doubts", therefore, s. 4(2) added that any provision of the Act that might be deemed to be inconsistent with a term of the treaty would not have effect to contravene the treaty; the Act was to be construed to provide for the execution of the treaty.

This provision should not be read as incorporating into the Act every provision of the treaty. Many of the latter provisions are aimed at setting forth the broad obligations of the High Contracting Parties and the duties of the executive and its officials, and have nothing to do with extradition hearings. These include, for example, detailed provisions regarding the form of requisitions for surrender and many of the papers that should accompany them to assist the executive in its decision. It was never intended that extradition judges should be concerned with all these matters and the Act does not provide for it. The judicial procedures are described in the treaties in only the most general terms. These procedures are specifically set forth in the Act, and it is to the Act that the extradition judge must principally turn for guidance. Section 4 of The Extradition Act, 1877 (now s. 3) simply was intended to ensure that the Canadian provisions conformed to treaty provisions that were negotiated against the background of the law of Great Britain. It does not provide for the broad incorporation of treaty provisions into judicial extradition proceedings; it was simply intended to avoid possible inconsistencies. Any other approach would defeat the basic purpose of the Act. Such inconsistencies were, in any event, hardly likely. Our Act was largely modelled on the British Act. Section 4(2) was obviously added out of an abundance of caution; it originally began, we saw, with the words "[f]or the avoidance of doubts . . . ."

A further related point must be made. The Act was intended to provide a general scheme of extradition. Until the British Act of 1870, the few British extradition treaties then existing had been implemented by special statutes. The 1870 statute was intended to provide a general system applicable to all extradition treaties. Given its terms and background, our statute must also be looked upon as establishing a general scheme. While the Act must be read consistently with the treaties affecting the same matters, it would, given the statute's intention to create a general system, be wrong to attempt assiduously to find inconsistencies, or to read into the duties of the extradition judge matters intended for executive decision and not assigned to the extradition judge by the Act. In fact the statute may be used to some extent to interpret the treaties; see Re DeBaun (1888), 32 L.C. Jur. 281, and R. v. Governor of Brixton Prison, ex p. Minervini, [1958] 3 All E.R. 318 (Q.B.).

At all events, most of the treaties bear a considerable similarity to one another. Thus from the earliest days to the present, many of the treaties contain provisions such as those in the treaty in this case that speak of "reciprocal extradition" or require that crimes be punishable by at least one year's imprisonment in both states. So there is no substance to the argument that the existence of these provisions in the treaty under consideration here makes it different from other treaties. A number of others deal with the situation by restricting surrender to indictable offences or types of offences of equivalent seriousness in the foreign state. The early treaties are reproduced in the Appendix to F. Piggott's Extradition: A Treatise on the Law Relating to Fugitive Offenders (1910); references to existing treaties applicable to Canada appear in La Forest's Extradition, 3rd ed., App. II, at pp. 359 et seq. There are, to be sure, some variations in language and substance but, given the nature of the implementing statute, it should not be readily assumed that these changes are in fundamental disaccord with the structure of the Act. This assertion is buttressed by the remarkable similarity between cases considering different treaties, both in Canada and Great Britain.

Finally, I might in passing refer to one further procedural difference between British and Canadian practices. In Great Britain, when a requisition for the surrender of a fugitive by a foreign state is made, it is generally the political authorities that first identify the British crime that conforms to that set forth in the foreign warrant, and it is the appropriate crime under British law that is set forth in the warrant of arrest presented to the magistrate at the extradition hearing. In Canada a practice had developed long before Confederation of going directly to a judge, without the previous interposition of the political authorities; see La Forest's Extradition, 3rd ed., at pp. 3-4. At that time, virtually all extradition cases were with the United States, which shared with Canada not only the same language but the same system of criminal law. It thus posed no great problem for the extradition judge to identify the crime for which the fugitive was sought according to the law of Canada. Given the geographical extent of Canada, the British approach was really inappropriate; see M. C. Blanchflower, "Interpretation and Application of Extradition Crime in the Extradition Act" (1992), 34 Crim. L.Q. 158, at p. 171. This pre-Confederation practice, which had the advantage of expediting the extradition process, has generally been followed to this day. In practice, it would appear, the crime as it is known in the foreign state is set forth in the information and warrant of arrest, and this leaves it up to the extradition judge to identify the equivalent Canadian crime at the hearing; see ibid., at p. 162. As Borins Co. Ct. J. (as he then was) put it in Re United States of America and Smith (1984), 1984 CanLII 3510 (ON SC), 15 C.C.C. (3d) 16 (Ont. Co. Ct.), at p. 27 (aff'd 1984 CanLII 3499 (ON SC), 16 C.C.C. (3d) 10 (Ont. H.C.)): "It is the task of the extradition court to fit a set of facts constituting the conduct of the alleged fugitive, not into the legal framework set up by the applicant government, but into Canadian legislation to determine if the alleged conduct constitutes an offence pursuant to that legislation." This does not ordinarily pose any problem because most Canadian extradition cases are with the United States and as a general rule the same criminal act or conduct falls within an offence of the same name in both countries. There is, however, much to be said for Blanchflower's view (supra, pp. 171-74) that the information in support of the warrant of arrest should set forth the name of the Canadian offence in the first place; it would be a better practice and avoid confusion. But s. 10(1) is not explicit on the point and either practice is valid. Consistent with the general principle that extradition laws should be liberally construed so as to achieve the purposes of the treaty, a much less technical approach to extradition warrants than to common law warrants has been adopted; see La Forest's Extradition, 3rd ed., at pp. 128-29.

The Relevant Provisions of the Act and the Treaty

The Act

I come now to a discussion of the provisions of the Act regarding the jurisdiction of a judge at an extradition hearing. So far as regards an accused fugitive, the situation here, that jurisdiction is set forth in s. 18(1)(b) of the Act. Since I shall later have occasion to deal with s. 18(1)(a) as well, I reproduce the whole of s. 18(1) here:

18. (1) The judge shall issue his 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,

(a) in the case of a fugitive alleged to have been convicted of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, prove that he was so convicted, and

(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 his committal for trial, if the crime had been committed in Canada. [Emphasis added.]

Put simply, s. 18(1)(b) tells us that the extradition judge's duty is to commit for surrender a fugitive accused of an extradition crime, if such evidence is produced as would according to the law of Canada justify his or her committal.

What then is an "extradition crime"? The term is defined in s. 2 of the Act as any crime that if committed in Canada would be one of the crimes described in Schedule I to the Act, or a crime described in an extradition arrangement (i.e., treaty) whether or not it is listed in that Schedule. That provision reads:

2. In this Act

"extradition crime" may mean any crime that, if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in Schedule I; and, in the application of this Act to the case of any extradition arrangement, "extradition crime" means any crime described in such arrangement, whether or not it is comprised in that Schedule; [Emphasis added.]

Moreover, by s. 34 (which reproduces the opening words of the First Schedule to the British Act of 1870), it is provided that the list of crimes in the Schedule are to be construed according to the law of Canada. It reads:

34. The list of crimes in Schedule I shall be construed according to the law existing in Canada at the date of the alleged crime, whether by common law or by statute made before or after the 28th day of April 1877, and as including only such crimes, of the descriptions comprised in the list, as are, under that law, indictable offences.

If one confines oneself to the crimes listed in the Schedule, which comprise the vast majority of all extradition crimes, it is difficult to avoid the conclusion that what the extradition judge must determine is whether a prima facie case exists that the act charged constitutes a crime according to Canadian law. I note that the crimes for which the respondent's surrender is sought (apart from conspiracy ‑‑ which only appears in the treaty, Art. 2(2)) are listed in Schedule I, item 4 of which reads: "Forgery, counterfeiting or altering, or uttering what is forged, counterfeited or altered." That being so, the ten acts of misrepresentation with which the fugitive is charged constitute extradition crimes pursuant to the definition of that term in s. 2 of the Act.

I would not wish it to be thought, however, that a different regime is mandated for crimes (like the conspiracy charged) that appear in the treaty but not in Schedule I. I have already explained that the reason for the addition of what is now para. (b) of the definition of extradition crime (R.S.C., 1985, c. E-23, s. 2) was to ensure that the Act would automatically apply to additional crimes set forth in new treaties, just as those new treaties were automatically implemented by the Act. It would be anomalous indeed if different regimes were established for crimes listed in the Schedule and those listed in the treaty alone. Indeed, this Court has recently decided that this is not the case. In interpreting s. 34 (which provides that the crimes in Schedule I are to be construed in accordance with the law of Canada), the Court in Allard, supra, stated, at p. 867:

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.

Shortly put, then, under the Act an "extradition crime" is one that if committed in Canada would be one described in the schedule or treaty as construed according to the law of Canada. There is nothing in the Act requiring proof that the act charged be a crime under the foreign law.

My colleague, Justice Sopinka, argues that the Act does contain one provision, s. 15, that restricts the application of the term "extradition crime" as defined in the Act. I think it more accurate to say that the provision recognizes the possibility that a treaty may restrict it. Section 15 (s. 9 of the British Act) reads:

15. The judge shall receive, in like manner, any evidence tendered to show that the crime of which the fugitive is accused or alleged to have been convicted is an offence of a political character, or is, for any other reason, not an extradition crime, or that the proceedings are being taken with a view to prosecute or punish him for an offence of a political character. [Emphasis added.]

In enacting s. 15, Parliament principally focussed on political offences, surrender for which is proscribed under all the treaties. However, Parliament by that provision also appears to have recognized that other qualifications to the term "extradition crime" might be made by the treaties. It should be observed, however, that s. 15 only empowers the extradition judge to take evidence. It gives the judge no additional power. Political offences apart, the only additional express power given the judge is, pursuant to s. 19(b), to transmit the evidence to the Minister of Justice for consideration. In the case of political offences, but in that case only, the Act is somewhat more explicit. Section 21 provides that no fugitive is liable to surrender for political offences, and ss. 22(a) and (b) empower the Minister to refuse to surrender for such offences. But even in the case of political offences, it remains an open question whether the extradition judge has jurisdiction to consider whether the alleged offence is of a political nature. A few Canadian cases assumed that such jurisdiction exists, but in 1973 the Federal Court of Appeal held that this issue falls solely within the purview of the executive, the extradition judge's function being limited to accepting any relevant evidence and transmitting it to the Minister of Justice; see Re State of Wisconsin and Armstrong (1973), 1973 CanLII 2181 (FCA), 10 C.C.C. (2d) 271; for a discussion, see La Forest's Extradition, 3rd ed., at pp. 84-85, 185-86. I should say that in England s. 3(1), the equivalent of ss. 21 and 22(a) and (b), explicitly provides that the extradition magistrate may consider the issue of political offences, but the English courts have made it abundantly clear that this power is restricted to political offences and does not apply to the other matters about which the magistrate may receive evidence under the equivalent of our s. 15 (s. 9); the latest case is R. v. Governor of Pentonville Prison, ex p. Sinclair, [1991] 2 A.C. 64 (H.L.) (hereafter referred to as Sinclair).

I need not, for the purposes of this case, resolve the issue so far as it relates to political offences. This depends on an interpretation of specific provisions of the Act that are not before us. I simply note that even in this, the clearest of cases to which s. 15 applies, it is by no means certain that the extradition judge has any jurisdiction other than to receive the evidence and transmit it to the Minister. Whatever may be the case regarding political offences, I entertain very strong doubt that the extradition judge was intended to monitor all the many and variegated conditions, qualifications and restrictions to which states have qualified their obligations to other states to surrender fugitive criminals. Lord Bridge of Harwich, speaking for all the Law Lords in Government of Belgium v. Postlethwaite, [1987] 3 W.L.R. 365 (H.L.), at p. 390, expressed a similar doubt. Such monitoring could lead to endless delays in a procedure intended to be expeditious. As Lord Templeman put it in Postlethwaite, at p. 392: "The progress of committal proceedings is a matter for the magistrate who, in practice, deals with extradition proceedings with the utmost despatch consistently with the needs of the prosecution and the requirements of the defence." More recently in Sinclair, Lord Ackner, also speaking for all the Law Lords, made it clear (at p. 89) that "monitoring the provisions of the Treaty is an executive, and not a magisterial, function". In Canada, though there has been scant discussion of the theoretical foundations of the issue, there has in practice been little recourse to the niceties of the treaty provisions. Counsel and judges have properly confined themselves within the four corners of the Act. Recently, however, counsel have extended their submissions to matters comprised in treaty provisions. The present case itself indicates the possibilities for endless delays as counsel and judges attempt to navigate an unfamiliar sea. In England, there has been a tendency (though fairly recent) to advance these treaty arguments at extradition hearings, leading to horrendously difficult cases that only the most determined can read or understand. A number of these are described in Sinclair. The recent cases have established that this incorporation of treaty provisions into the Act has never been the intent of the Act or the treaties. No provision in the Act is to this effect and the English courts have recently put an end to the practice that had developed. Lord Ackner concludes the relevant part of his reasons on the following note (at pp. 91-92): "Certainly for the future, if your Lordships concur that the magistrate has no jurisdiction to decide . . . whether the requirements of the Treaty have been satisfied, his powers being limited to those specified in sections 3(1), 8, 9 and 10, much time should be saved both in the magistrates' and in the Divisional Court."

Some perspective may be gained through reflection on what an extradition treaty is. It is an agreement between two sovereign states whereby each agrees to surrender on request persons alleged to have committed crimes in the state requesting the surrender. To this general obligation, states frequently attach terms and conditions. When a request is made, the political authorities in the requested state will examine the material to see that the request complies with these terms and conditions. The treaties also make provision for the requesting state to supply certain material whereby the requested state can determine the validity of the request and its compliance with the terms and conditions of the treaty (see Art. 9 of the treaty here (Can. T.S. 1976 No. 3)), and it is reasonable that these are the materials to be looked at in determining the issue. In essence, the treaty obligations are of a political character to be dealt with in the absence of statute by the political authorities. However, as Laskin J. noted in Commonwealth of Puerto Rico v. Hernandez, 1973 CanLII 184 (SCC), [1975] 1 S.C.R. 228, at p. 245, the liberty of the individual has not been forgotten in these rather special proceedings. The treaties, sensitive to the liberty of the individual, contain provisions for their protection. Most important is the requirement that there be prima facie evidence that the act charged would constitute a crime in Canada. This specific matter, about which judges are most competent, is the task assigned to a judge by the Extradition Act. Other tasks, no doubt, may be assigned to extradition judges, but one must find a statutory source, and courts should not reach out to bring within their jurisdictional ambit matters that the Act has not assigned to them. Barring statutory provision, the task of dealing with international treaty obligations is for the political authorities, and is performed by the Ministers and departments in the course of fulfilling their appropriate mandates. The Extradition Act, of course, gives the Minister of Justice authority respecting the surrender of a fugitive; see ss. 20 - 22 and 25. The treaty terms are aimed at the obligations of the parties and not the internal procedures by which these are to be carried into effect. The spirit in which the treaties should be approached is well stated by Lord Bridge in Postlethwaite, supra, as follows, at pp. 383-84:

. . . an extradition treaty is "a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to be construed as though it were a domestic statute:" Reg. v. Governor of Ashford Remand Centre, Ex parte Beese [1973] 1 W.L.R. 969, 973, per Lord Widgery C.J. In applying this . . . principle, . . . it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose.

I have found no statutory indication that the treaty provisions advanced by counsel are of concern to the courts, and a careful reading of these provisions makes it clear that they were intended to be dealt with by the executive.

Finally, my colleague appears to believe that the blank for setting forth the name of the relevant crime in the form of warrant of committal provided in the Act must be filled by the name of the crime under United States law. I cannot agree. For my part, I would have thought perhaps the best way to describe the crime is under the appropriate name appearing in the Schedule to the Act or the treaty. In England, the practice is to describe the crime that is specified by the Secretary of State, i.e., the extradition crime as described under English law; see Sinclair, supra, at p. 84. However, I think it is sufficient if the nature of the crime is known. As with the warrant of apprehension, the courts have not required particularity. They have, for example, found warrants that described the relevant crime as "fraud by an agent" or "stealing" to be sufficient: Ex p. Piot (1883), 48 L.T. 120; Re Gross (1898), 1898 CanLII 90 (ON CA), 2 C.C.C. 67 (Ont. C.A.); Ex parte Thomas (1917), 1917 CanLII 679 (NB CA), 28 C.C.C. 396. If discussion of issues of that kind can now only be found in early cases, it is presumably because the principle that the technicalities of criminal law only apply to a limited extent in extradition cases is now well understood by the courts.

I turn now to the treaty provisions.

The Relevant Treaty Provisions

Like most treaties, the one under consideration here (Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3) only speaks in general terms about the procedures to be employed by the requested state in implementing its treaty obligations. It leaves the details to the law of the requested state. Article 8, so far as relevant, reads as follows:

Article 8

The determination that extradition should or should not be granted shall be made in accordance with the law of the requested State . . ..

Article 9(3) referring to the grounds of arrest and Art. 10(1) dealing with the sufficiency of evidence again refer to the law of the requested country. Indeed one could, in reading the treaty along with the Act, not unfairly hold that Art. 10(1) replicates in abridged form s. 18(1) of the Act. In relevant part, the former reads:

Article 10

(1) Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting State.

At the very least, there is no inconsistency here with the provisions of the Act. There is nothing in the text of the treaty itself that specifically requires proof of foreign law at an extradition hearing. It was argued, however, that there are two provisions that impose such a requirement. The first (Art. 2(1)) provides that the relevant offences be punishable by at least one year's imprisonment under the laws of both countries. The other (Art. 2(3)) deals with United States federal offences.

Article 2(1) reads:

Article 2

(1) Persons shall be delivered up according to the provisions of this Treaty for any of the offenses listed in the Schedule annexed to this Treaty, which is an integral part of this Treaty, provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.

One would expect that the High Contracting Parties would make provision to enable the requested state to monitor this obligation. And so they do. So far as the requirement that the act charged must be a crime in the requested state, Art. 10 provides that extradition shall be granted only if evidence be found sufficient, according to the law of the requested state, to justify the committal of the fugitive for trial if the offence had been committed in the requested state, or to prove that he or she is the identical person convicted by the courts in the requesting state. This critical function for the liberty of the subject is assigned by the Extradition Act to an extradition judge under a procedure similar to a preliminary hearing. This is a matter the judge is more competent to do. To expedite the procedure and minimize expense, however, depositions are to be admitted in evidence in lieu of witnesses at the hearing when properly certified and authenticated (Art. 10(2)). For their validity, we thus rely on the fairness and good faith of judicial and political authorities of the requesting state.

To monitor the obligation as it applies to the foreign law, a different procedure is adopted. The evidence that the offence is a crime in the foreign country is determined by the executive of the requested state in considering the validity of the requisition. Article 9 of the treaty enables it to do so. That provision requires that the request for surrender be accompanied by, among other things, a statement of the facts of the case and "the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense" (Art. 9(2)) (emphasis added). As well, in the case of an accused fugitive (the situation here), the requesting state must provide "a warrant of arrest issued by a judge or other judicial officer of the requesting State" (Art. 9(3)) (emphasis added), and in case of a convicted fugitive, "the judgment of conviction and sentence" (emphasis added). Article 9 reads:

Article 9

(1) The request for extradition shall be made through the diplomatic channel.

(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense, and a statement of the law relating to the limitation of the legal proceedings.

(3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his arrest and committal for trial if the offense had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.

(4) When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence passed against him in the territory of the requesting State, by a statement showing how much of the sentence has not been served, and by evidence proving that the person requested is the person to whom the sentence refers.

Nowhere is the duty to consider the foreign law assigned to the extradition judge. This, as I mentioned, is a task for the political authorities at common law, now assigned by statute to the Minister of Justice. It is not unreasonable for the Minister to rely on the material supplied with the requisition as proof of foreign law, as demonstrated by the fact that it has been accepted for that purpose in both the House of Lords and this Court; see Postlethwaite, supra, at pp. 390-91, and Washington (State of) v. Johnson, supra.

The approach I have adopted here is substantially the same as that taken by the House of Lords in Postlethwaite and Sinclair, supra. In England, it will be remembered, the consideration of the requisition comes first, after which the case is presented to the extradition commissioner on order of the Secretary of State. In Canada, the procedure, we saw, is more fluid, the case frequently coming before the extradition judge before the formal requisition has been made. But the substance is the same; the Minister of Justice may at any time refuse to surrender and discharge the fugitive (s. 22 of the Act).

I shall take less time with the second provision that purportedly requires proof of foreign law, because I rather doubt if it applies in the present case. That provision is Art. 2(3) which reads:

Article 2

(3) Extradition shall also be granted for any offense against a federal law of the United States in which one of the offenses listed in the annexed Schedule, or made extraditable by paragraph (2) of this Article, is a substantial element, even if transporting, transportation, the use of the mails or interstate facilities are also elements of the specific offense.

This provision was not adopted to complicate the law, but to simplify it. In the United States, the individual States, of course, have jurisdiction over criminal law, and federal offences must be framed so as to come within federal legislative power. Article 2(3) permits surrender for an offence listed in the treaty, though it contains components to conform to United States constitutional requirements that do not, of course, appear in comparable Canadian offences.

The listed offences also make no reference to the law of the requesting state except in the case of sexual offences against children (item 6), which is no doubt meant to ensure that these particular offences are not to be prosecuted under more general provisions. This requirement, like that in Art. 2(1), could, I would think, be adequately established, so far as foreign law is concerned, by the text of the law accompanying the request for surrender.

All of these exceptions seem to me to be of the kind that prove the rule. Apart from these, I see nothing that would vitiate the direction in Art. 8 of the treaty that the determination that extradition should or should not be granted shall be made in accordance with Canadian law. Put another way, there is nothing inconsistent (which is what s. 3 requires) with the Extradition Act, which we saw only requires that there be prima facie evidence of an act that constitutes a crime listed in the treaty according to the law of Canada. In fact, the Act does not deal with proof of foreign law at all. That, as I said, is a matter for the executive.

I am wholly unimpressed by the argument that the scheme so administered does not provide for reciprocal surrender of offenders, as contemplated in the preamble to the treaty and in most other extradition treaties. There is, of course, a reciprocal arrangement for the exchange of criminals falling within certain categories, and that arrangement functions with relative smoothness on an ongoing basis. To require proof of foreign law in an extradition hearing (to ensure compliance with foreign law) would, as I shall attempt to demonstrate, serve no useful purpose and seriously impede the purpose set forth in the preamble of the treaty of making more effective the cooperation of the two countries in the repression of crime. Quite apart from this, however, it would seem odd if general words in a preamble were to be given more weight than the specific provisions that deal with the matter. I observe that the reasoning I have adopted in relation to Art. 2(1) applies equally to this clause so that in the end this is a matter of concern to the executive, not the extradition judge. I would add that the treaties in the cases supporting my view of Art. 2(1) also contained a reciprocal clause like the one with which we are concerned here; see In re Nielsen, [1984] A.C. 606 (H.L.), United States Government v. McCaffery, [1984] 2 All E.R. 570 (H.L.), Postlethwaite, Johnson and Sinclair, supra.

Purpose of the Hearing

The function of the extradition hearing, then, as observed in Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, is a modest one. That function is to determine whether there is sufficient evidence that a fugitive accused has committed an act in the requesting state that would, if committed in Canada, constitute a Canadian crime listed or described in the treaty. In short, and I shall have more to say about this later, what the extradition judge must determine is whether the conduct of the accused would constitute a crime if it had been committed in this country. This function, if modest in scope, is critical to the liberty of the individual. This Court thus put the matter in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, at p. 515:

The hearing thus protects the individual in this country from being surrendered for trial for a crime in a foreign country unless prima facie evidence is produced that he or she has done something there that would constitute a crime mentioned in the treaty if committed here.

Lord Ackner's statement in Sinclair, at p. 82, that the extradition judge "has important but very limited functions to perform", aptly describes the situation.

The protection afforded the fugitive does not end there. I have mentioned that the treaty provides that the requisition be accompanied by the text of the law of the requesting state describing the offence and prescribing the punishment as well as a warrant of arrest issued by a judge or other judicial officer in that state. Unless we put in question the good faith or competence of the judicial and other authorities in that country -- something against which courts, including this Court have repeatedly warned us (see, for example, Schmidt, at p. 516) -- I fail to understand my colleague's fear that we might send a person to a foreign country for a crime that does not exist.

Nor is this all the protection afforded the fugitive. The treaty further provides (and this is so of all the treaties) that the person surrendered shall not be detained, tried or punished for an offence other than that for which extradition has been granted (Art. 12(1)). In short, he can only be prosecuted by the requesting state for the offence for which his surrender was made. Anglin J. made this abundantly clear in Buck v. The King (1917), 1917 CanLII 48 (SCC), 55 S.C.R. 133, where, in dealing with the offences for which a person who had been extradited to Canada could be prosecuted, he stated, at p. 145:

. . . "the offence for which (the accused) was surrendered" means the specific offence with . . . which he was charged before the Extradition Commissioner [in the surrendering state] and in respect of which that official held that a primâ facie case had been established and ordered his extradition, and not another offence or crime, though of identical legal character and committed about the same time and under similar circumstances.

The same is true in the United States where a returned fugitive has a justiciable right to be tried solely for the crime for which he was surrendered. The leading case (on which Anglin J. relied in Buck) is United States v. Rauscher, 119 U.S. 407 (1886), where Miller J. stated the opinion of the majority of the Supreme Court regarding the rights of an extradited fugitive, at p. 424:

That right, as we understand it, is that he shall be tried only for the offence with which he is charged in the extradition proceedings and for which he was delivered up, and that if not tried for that, or after trial and acquittal, he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime committed previous to his extradition.

See also Johnson v. Browne, 205 U.S. 309 (1907); United States v. Sobell, 142 F.Supp. 515 (1956), aff'd 244 F.2d. 520 (1957), at p. 524, cert. denied 355 U.S. 873 (1957); United States v. Alvarez-Machain., 119 L. Ed. 2d 441 (1992).

The trial judge in the United States, of course, deals with the offence under the law of that country. The identity of that offence can be determined by reference to the text of that law supplied with the requisition. The extradition judge in Canada, on the other hand, is concerned with whether the underlying facts of the charge would, prima facie, have constituted a crime listed in the treaty if they had occurred in Canada. That is what is meant by saying that double criminality is conduct based. The courts of both countries deal with the offence under their own law, the law in which they are versed, but each must ascertain whether under that law the facts support the charge.

I fail to see how proof of foreign law can advance the purpose of the extradition hearing as I have identified it, except possibly in rare cases such as political offences that may be expressly assigned to the extradition judge. On the other hand, to require evidence of foreign law beyond the documents now supplied with the requisition could cripple the operation of the extradition proceedings. It is unthinkable that this would even have been contemplated at the time the Act was passed and many of the existing treaties were negotiated. To transport witnesses, sometimes halfway across the world, would have seemed an impossible prospect. Quite different reasons argue against the possibility in modern times. In our days, crime does not stop at the border. Much of organized crime is international in scope. And as this Court noted in United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, at p. 1485: "The only respect paid by the international criminal community to national boundaries is when these can serve as a means to frustrate the efforts of law enforcement and judicial authorities." This criminal community would certainly welcome the need to prove foreign law. Flying witnesses in to engage in abstruse debates about legal issues arising in a legal system with which the judge is unfamiliar is a certain recipe for delay and confusion to no useful purpose, particularly if one contemplates the joys of translation and the entirely different structure of foreign systems of law. In his book Extradition in International Law (1971), I. A. Shearer thus puts the matter, at pp. 139-40:

. . . it would seem wrong in principle that extradition should be subjected to the unnecessary additional hazard of proof of criminality according to a law unfamiliar to the court before which the fugitive is brought. The true purposes of the double criminality rule are adequately served by the enquiry which the court in the requested State is competent to carry out, viz. the determination whether the act for which extradition is claimed, if committed in the requested State, would constitute an offence under the law of that State.

Lord Ackner expressed his view in this manner in Sinclair, supra, at p. 91:

Your Lordships are concerned with the construction of an Act passed over a hundred years ago. I cannot accept that the legislature intended that it was to be part of the function of the [extradition judge] to preside over lengthy proceedings occupying weeks, and on occasions months, of his time hearing heavily contested evidence of foreign law directed to whether there had been due compliance with the many and varied obligations of the relevant Treaty. The inconvenience of such a procedure is well demonstrated by the current litigation.

The same can be said of the present litigation. Subject to the possible exceptional circumstance of political offences to which I have previously referred, I agree with Lord Ackner (quoting Robert Goff L.J.) that the extradition judge "is not concerned with foreign law at all" (at p. 84).

The Authorities

Though the recent leading cases affecting the Act also deal with the treaty provisions, for clarity I shall examine the authorities under the Act and the treaty separately.

The Act

The Canadian authorities on whether or not proof of foreign law is required at an extradition hearing for long remained in a state of confusion. The early cases predominantly favoured the view that it was sufficient at the extradition hearing to establish that the act charged was an offence under Canadian law; the fact that the act charged was also an offence in the requesting state, it was thought, should be presumed from the fact that the request was made; see the cases cited in La Forest's Extradition, 3rd ed., at p. 165, n. 153. However, the view that the foreign law must be proved at the extradition hearing gradually gained ascendency owing to the influence of the English approach at the time; see idem, n. 149. Even then, however, judges sought to avoid this result by holding that a foreign indictment constitutes strong presumptive evidence of the foreign law; see idem, n. 152. Again, some judges advanced the compromise position that common law crimes needed no proof of foreign law, but that statutory crimes did; see idem, n. 154. Apropos of this, I should say that probably because most of our cases came from the United States, with which much of Canada shares a common law background and where crimes are similar, there were in any event not too many cases where the issue of proof of foreign law was raised. The confusion remained for a long time since there was for many years no appeal from habeas corpus and individual judges took different positions.

Though there was confusion, no case ever decided that it was necessary at an extradition hearing to prove that a crime came within the treaty according to the law of the requesting state. There are, it is true, statements in some of the cases to the effect that the crime must be one listed in the treaty as construed by the law of both countries (see La Forest's Extradition, 3rd ed., p. 74, nn. 126, 127), but this does not necessarily mean, and I will return to this, that the issue of foreign law is one to be determined by the extradition judge. The statements are, at all events, mere dicta and I need not review them in detail. They fly in the face of the foregoing analysis of the Act and the treaty, from which I have concluded that there is no point at an extradition hearing in examining foreign law at all. I shall, however, have more to say about these cases later.

In England, the practice of obtaining proof of foreign law began with two Divisional Court cases dealing with habeas corpus applications late in the 19th century: In re Bellencontre, [1891] 2 Q.B. 122, and In re Arton (No. 2), [1896] 1 Q.B. 509. As Lord Diplock, speaking for the House of Lords, put it in In re Nielsen, supra, at p. 622: "The curious feature of the judgments in each of these two cases is that in neither of them was there any reference to the terms of those sections of the Acts which were the sole source of the jurisdiction of the magistrate [in Canada the extradition judge]. . .." They appear to have devised the practice out of whole cloth. The Royal Commission on Extradition of 1878, which had thoroughly examined the workings of the Act, saw no such role for an extradition judge. It thus commented, at p. 8 of its report (British Digest of International Laws, Appendix, at p. 810):

If it be asked how it is to be ascertained that the offence charged is known and recognised as an offence, the answer is that our own law will afford a sufficient test, being abundantly comprehensive as to offences against person and property.

Besides which, there is another reason for seeing that the charge in respect of which extradition is asked for is an offence under our own law. It is and always must be necessary that a primâ facie case shall be made out before a magistrate in order to support the application for extradition. But the English magistrate cannot be expected to know or interpret the foreign law. It is not desirable that he should be required to do more than to see that the facts proved constitute primâ facie an offence which would have been within judicial cognizance if done in this country.

In fairness to the judges who heard these cases, they acted in response to an argument by the fugitives, which (after having examined texts of the foreign law) they rejected. The decisions were criticized on this point by Piggott, the leading authority in the field at the time, and have continued to be attacked by specialists in the field ever since; see Piggott, supra, at pp. 124-25; Shearer, supra, at pp. 139-41; M. C. Blanchflower, "State of Washington v. Johnson" (1989), 31 Crim. L.Q. 197; La Forest's Extradition (1st ed. 1961), at p. 72, (2nd ed. 1977), at pp. 108-10, (3rd ed. 1991), at pp. 51-55, 164-74; and see also M. C. Blanchflower, "Examination of the Law of the Requesting State in Extradition Proceedings" (1992), 34 Crim. L.Q. 277. Nonetheless the practice, which was never justified in the cases ‑‑ see Lord Diplock in Nielsen, at p. 623, continued and was adopted by some judges in Canada. The uniformity of the practice in Great Britain, as compared to the situation in Canada, reflects the centralized court system in Great Britain and the deference afforded to one another by judges at the same level. As in Canada, there were no appeals from habeas corpus, so the matter only came up for review on appeal in recent years.

The House of Lords had occasion to review the matter in Nielsen, supra, and held that the practice followed in Bellencontre and Arton (No. 2) had no foundation. In Nielsen, the fugitive was accused in Denmark of having fraudulently abused his position as controlling shareholder of one company to assist financially another company under his control. In the warrant of arrest and subsequent orders prepared by the Home Secretary pursuant to English practice, the offence was described in accordance with certain English offences with which the alleged crime conformed. The magistrate refused to surrender because on examination of Danish law, he found the Danish offence was not substantially similar to the English offences. On appeal to a Divisional Court, however, the magistrate's order was quashed. An appeal from that court's decision was dismissed by the House of Lords, their Lordships confirming that the magistrate had acted improperly. Political offences and specific exceptions in the treaty apart, the sole jurisdiction of the magistrate to hear the case, their Lordships held, was that set forth in s. 10 of The Extradition Act, 1870. As it relates to an accused fugitive, it reads:

10. In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.

I should in passing observe that this provision is in substance (if not in precise form) the same as s. 18(1)(b) of the Canadian Act, that the definition of extradition crime in s. 26 conforms to that in s. 2 of our Act, and that the preamble to the list of crimes in Schedule 1 is to the same effect as our s. 34, all of which are cited infra. Under these provisions, their Lordships held, the magistrate is only required to consider whether there is a prima facie case that the fugitive has committed an act in the requesting state that constitutes a crime described in the treaty as defined by English law. If so, the magistrate must commit the accused for surrender. As Lord Diplock, speaking for all the Law Lords in Nielsen, put it, at pp. 624-25:

. . . at the conclusion of the evidence the magistrate must decide whether such evidence would, according to the law of England, justify the committal for trial of the accused for an offence that is described in the 1870 list (as added to or amended by subsequent Extradition Acts) provided that such offence is also included in the extraditable crimes listed in the English language version of the extradition treaty. In making this decision it is English law alone that is relevant. The requirement that he shall make it does not give him any jurisdiction to inquire into or receive evidence of the substantive criminal law of the foreign state in which the conduct was in fact committed. [Emphasis in original.]

My colleague, Sopinka J., has referred to a passage in this case which argues for a different disposition under certain treaty provisions, but as I mentioned I shall deal with that issue later.

Lord Diplock returned to the fray in McCaffery, supra. He there set forth the role of the magistrate in the following manner, at pp. 572-73:

. . . the test whether a person in respect of whom a warrant for his arrest had been issued in a foreign state for an offence alleged to have been committed in that state was liable to be surrendered as a fugitive criminal was not whether the offence specified in the foreign warrant of arrest as that for which it had been issued was substantially similar to a crime under English law falling within the list of offences described in the Sch I to the Extradition Act 1870, as currently amended (ie the so-called `double criminality' test). The right test . . . was whether the conduct of the accused, if it had been committed in England, would have constituted a crime falling within one or more of the descriptions included in that list. [Emphasis in original.]

The English courts have continued this approach to this day. I quoted earlier Lord Ackner's excerpt from Robert Goff L.J. in Sinclair, supra, at p. 84, that "the magistrate is not concerned with foreign law at all", and there Lord Ackner reviews other cases to the same effect.

As I mentioned earlier, the relevant provision in the Canadian Act, s. 18(1)(b), is precisely to the same effect as the relevant English provision, s. 10. Not surprisingly, then, this Court has in recent cases expressed similar views. Thus in Mellino, supra, the Court emphasized, at p. 553:

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.

As I noted earlier, "extradition crime" for the purposes of the Act means an act committed in the requesting state that would constitute a crime described in the treaty if committed in this country. This definition undergirds the reasoning in a number of passages in Canada v. Schmidt, supra, including the passage quoted above to elucidate the purpose of the procedure, namely (at p. 515):

The hearing thus protects the individual in this country from being surrendered for trial for a crime in a foreign country unless prima facie evidence is produced that he or she has done something there that would constitute a crime mentioned in the treaty if committed here.

See also pp. 514-15.

The Court of Appeal in the present case declined to follow In re Nielsen, supra. This, it did for two reasons. First, it thought that para. (b) of the definition of "extradition crime" in the Act gave it a wholly different meaning from the English definition. I have already explained what, in my view, is the correct approach to that definition and I need say no more about it. A second reason why the Court of Appeal did not follow Nielsen was that it considered itself bound to take that course by virtue of this Court's decision in Washington (State of) v. Johnson, supra. It conceded, however, that the central point in Johnson was the reverse of the one it had to decide. In short, what the Court decided in Johnson was that it had to be established that the crime for which a fugitive is sought would constitute a crime listed in the treaty according to the law of Canada. This, in my view, is of critical importance. In coming to its conclusion, the Court of Appeal in the present case was obviously affected by a reference to the definition of extradition crime in my text (2nd ed.), supra, at p. 42, which had been cited by Wilson J. I do not resile from that definition as a broad description viewed from the perspective of the whole of the extradition process, but modesty forbids (as well I fear the ordinary rules of statutory construction) that I use it in construing the Act in lieu of the definition set forth in the Act itself. I shall have more to say later about comprehensive definitions of this kind. They are addressed to the whole of the extradition process, and are not confined to the proceedings before the extradition judge. For the moment, however, it is important to observe that my former colleague did not cite the definition in my book as a substitute for that set forth in the Act. She has always been too astute to do me that much honour. Under the heading "Extradition Crimes" she refers solely to the definition of that term in the Act; similarly, as we shall see, when she came to deal with the issue directly before her, she did so on the basis of the statutory definition. On the other hand, she cites the definition in my book along with Shearer, supra, p. 137, for the proposition central to her judgment that the "double criminality" rule looks to the conduct of the individual; it does not engage a comparison of offences in the two countries. For a crime to be an extradition crime, she reasons, it must be an act that is not only an offence in the requesting state but must also be one in the requested state that is listed in the treaty. At no time, however, does she state that it is for the extradition judge to determine that the act charged is a crime in the requesting state. And when she deals with the function of the extradition judge, which is what she was, of course, directly concerned with, she refers to the definition in the Extradition Act. This she does in discussing the application of the "double criminality rule" (at pp. 342-43). Throughout she confines herself to the task of determining whether the act charged amounts to a crime listed in the treaty as understood by Canadian law. This is consistent with what she deems to be the underlying purpose of the rule of double criminality, that no person shall be surrendered for an act (or conduct) in another country unless that act or conduct is considered a crime here. For this proposition, she cites (at pp. 341-42) the following passage from Shearer, at pp. 137-38:

The validity of the double criminality rule has never seriously been contested, resting as it does in part on the basic principle of reciprocity which underlies the whole structure of extradition, and in part on the maxim nulla poena sine lege. For the double criminality rule serves the most important function of ensuring that a person's liberty is not restricted as a consequence of offences not recognized as criminal by the requested State. The social conscience of a State is also not embarrassed by an obligation to extradite a person who would not, according to its own standards, be guilty of acts deserving punishment. So far as the reciprocity principle is concerned, the rule ensures that a State is not required to extradite categories of offenders for which it, in return, would never have occasion to make demand. The point is by no means an academic one even in these days of growing uniformity of standards; in Western Europe alone sharp variations are found among the criminal laws relating to such matters as abortion, adultery, euthanasia, homosexual behaviour, and suicide. [Emphasis added by Wilson J.]

I should observe that this passage is completely consistent with the approach of this Court set forth in Schmidt, at p. 515, to which I have already referred. I would refer as well to Allard, supra, at p. 868, and to Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, where the majority of this Court states in the words of McLachlin J., at p. 845, that "[w]e will not extradite for acts which are not offences in this country" (emphasis added).

Wilson J. dealt with the issue before her by resort to a theoretical rubric, the "double criminality rule". But it is essential to underline her understanding of double criminality as it applies at an extradition hearing, which I have already described. In short, in performing the function of applying that rule, she quite properly did so in accordance with the definitions and requirements of the Extradition Act. We have already seen that what is required in the case of an accused fugitive under s. 18(1)(b) of the Act is prima facie proof that the fugitive has committed an act that constitutes an "extradition crime" as defined in the Act or listed in the treaty as interpreted under the law of Canada.

To fully grasp Wilson J.'s reasoning in Johnson, it is important to note that she was not there dealing with a fugitive who has merely been accused of an extradition crime, but with one who has been convicted of such crime. The Act deals with convicted fugitives under s. 18(1)(a). That procedure is rather similar to that for accused fugitives under s. 18(1)(b). Section 18(1)(a) requires proof that the fugitive has been convicted in the requesting country of an "extradition crime" as defined in the Act, which again means that what has to be established is that the relevant act would constitute a listed crime in accordance with the law of Canada. However, because what is required to be proved under s. 18(1)(a) is different, the proof that the crime is one in Canada is not done in the same way and may involve examining foreign law to determine whether the act for which a foreign conviction was entered was an offence according to the law of Canada. This can be seen by a closer look at the relevant parts of Johnson.

Johnson was a case where the fugitive had been convicted of "theft in the second degree" in the State of Washington. "Theft" was listed in the treaty. However, the definition of the Washington offence made no reference to the element of fraudulent intent which is required under the law of Canada. Since the fugitive was a convict, Wilson J. held that s. 18(1)(a) applied. In her view, there were two ways in which it could be established that the conduct of the fugitive would meet the requirements of that provision, i.e., that he had been convicted in the requesting state of an offence that, if committed in Canada, would constitute a crime according to the law of Canada. One way was by showing that the Washington offence required fraudulent intent; the other, more akin to the approach under s. 18(1)(b), was by establishing that under the specific facts of the case, there had been fraudulent intent. She deals with this, as I noted, in terms of her description of double criminality for the purposes of s. 18(1)(a).

Turning to the first method, she concluded that an examination of the United States law did not reveal that the fugitive had been convicted in Washington of an offence that would constitute the relevant extradition crime of theft as defined under Canadian law. Theft under Canadian law required fraudulent intent, but the American text accompanying the requisition did not mention this fraudulent intent, which was required by Canadian law, and this requirement had not been otherwise established. So it had not been shown that the conviction in Washington constituted evidence that the fugitive's conduct would have amounted to theft under the law of Canada, as is required by the definition of "extradition crime" in the Act.

Wilson J. then turned to the second method of establishing that the offence of which the accused was convicted would be a listed crime under Canadian law ‑‑ an examination of the facts of the case. On an examination of those facts, she found there was "no evidence" of fraudulent intention as required by Canadian law.

Wilson J.'s mode of approach, which I have already described, is clearly set forth, at pp. 345-46, as follows:

I agree with the respondent that there are two methods by which double criminality could be established for the purposes of s. 18(1)(a). First, it could be established that Washington law required fraudulent intent for a conviction of the offence charged. This could be done either by showing that the text of the offence includes a requirement of fraudulent intent or by calling expert witnesses to testify that while fraudulent intent is not a requirement apparent on the face of the Washington statute, it is nevertheless required by the law of Washington. If either of these be shown, then evidence of a conviction under Washington law would constitute evidence that the fugitive's conduct would have amounted to theft under Canadian law. In this case, however, the text of the foreign law provided by the requesting state pursuant to Article 9(2) of the Treaty did not show that the Washington law required fraudulent intent. Neither was any expert evidence called on this issue.

The second method of showing that the double criminality requirement had been met would be to establish that the particular facts underlying the Washington charge would, if replicated in Canada, constitute an offence under either s. 283(1) or s. 290(1) of the Criminal Code. This was not done either. The facts underlying the Washington charge were laid out in the affidavits before the extradition judge. However, the extradition judge did not find that the facts contained evidence of fraudulent intent. [Emphasis added.]

To sum up, Wilson J.'s concern was to determine whether the conduct of the accused was an extradition crime according to the law of Canada. If it had been shown that the accused had been convicted in the United States of an offence that incorporated all the components of a listed crime as defined in Canada, that would have sufficed. It would also have been sufficient if it had been established that the facts underlying the conviction would, if they had been committed in Canada, constitute a crime listed in the treaty. In such circumstances, it would be unnecessary to resort to United States law to find that the act charged was a crime according to the law of Canada, which is all the Extradition Act requires of the extradition judge. All the judges in Johnson were agreed on the latter point, and so would have committed without proof that the crime charged was an offence under the treaty according to the law of the requesting state. The majority and the minority simply disagreed on the facts.

I should observe that Nielsen was concerned with an accused person under the British equivalent of s. 18(1)(b) rather than s. 18(1)(a), but it must be noted that Lord Diplock in that case was of the same view as Wilson J. as to the requirements of the equivalent provision to s. 18(1)(a) dealing with convicts, and, as I see it, their reasons are fundamentally to the same effect. Their sole difference is one of judicial method. Wilson J. in Johnson deals with the case in terms of underlying principle, the "double criminality rule", as that principle is incorporated in s. 18(1)(a) of the Act. Lord Diplock prefers to stick closely to the specific wording of the comparable provision in the British statute, which he refers to in his statement in McCaffery, at p. 573, cited supra, as "the so-called `double criminality' test". I must confess that when dealing with extradition within the confines of the Extradition Act, I am more comfortable with the more concrete approach followed by Lord Diplock. It avoids confusing the extradition judge about theoretical issues and with questions that fall outside his functions. But it really makes no difference. At the end of the day, both Wilson J. and Lord Diplock agree with the last sentence in the quotation from McCaffery which (adapted to Canada) reads: "The right test . . . was whether the conduct of the accused, if it had been committed in [Canada], would have constituted a crime falling within one or more of the descriptions included in that list". As already mentioned, this Court has said substantially the same thing in Mellino and Schmidt.

In sum, what must be established is that the act or conduct of the fugitive would, if it had occurred in Canada, constitute a crime listed in the treaty according to the law of Canada. This is so whether the fugitive is merely accused or has been convicted of the crime. The definition of "extradition crime" and s. 34 of the Extradition Act require this. But the manner of establishing this proposition varies depending on whether the fugitive is a convict or a mere accused.

Section 18(1)(a) was intended to simplify the process of proving that the offence for which a convict is sought is an extradition crime under the Act. That will certainly be the result where the definition of the crime in the foreign state comprises the same elements as the Canadian crime. The proposition can then be established by simply providing the text of the foreign law, as Wilson J. held. But if this congruence is absent, the problem becomes somewhat more difficult. In that case, the fact that the underlying conduct would be a crime in Canada can only be demonstrated with proof that the foreign law contains the elements required under Canadian law, or by establishing that the particular facts show that the conduct of the fugitive would amount to a crime in Canada; see Nielsen, supra, at pp. 621-22.

Treaty Provisions: Art. 2(1)

I now turn to the authorities dealing with treaty provisions qualifying a state's duty under the treaty to surrender fugitives. I shall in particular focus on Art. 2(1), since it was the one on which the respondent principally relied, but the same reasoning governs the other relevant provisions.

So far as I am aware, the first case to deal with a treaty provision like Art. 2(1) is McCaffery, supra, where Lord Diplock considered, in obiter, a similar provision in the treaty between the United Kingdom and the United States. Before examining that case it is useful to discuss the genesis of Lord Diplock's thinking, which appears in a passage in Nielsen, supra, cited by Sopinka J.

In Nielsen, it will be remembered, Lord Diplock, speaking for the House of Lords, held that barring express treaty provision, all that had to be established at an extradition hearing was a prima facie case that the fugitive's conduct in the requesting state would, if committed in England, constitute a listed crime according to the law of England. In Nielsen there was no treaty provision affecting the matter, so the fugitive was committed for surrender. In obiter, however, Lord Diplock expressed the view that a treaty may expressly require proof of foreign law at an extradition hearing, noting that this would have been the case if the request had been made under the supplementary treaty with Denmark. That treaty had simply amended the principal treaty dealt with in Nielsen by adding the rather unusual provision (cited by my colleague) to the effect that the parties to the treaty may in their discretion surrender fugitives for other crimes than those listed in the treaty, but only in the case where the conduct is an extradition crime according to the law of both countries. In such a case, it would be necessary in Lord Diplock's view to hear evidence of Danish law. I should in light of the subsequent developments observe that Lord Diplock's comments qualified the reasons of Robert Goff L.J. in the Divisional Court (1983), 79 Cr.App.R. 1, of which he had taken pains to "record my respectful admiration" (at p. 620). In the Divisional Court it had been made plain that the magistrate at an extradition hearing was not concerned with foreign law at all. It agreed, however, that questions of foreign law would, of course, arise before the Secretary of State, in the course of ensuring compliance with the treaty.

Shortly afterwards, in McCaffery, Lord Diplock reiterated his understanding of the law, this time in relation to a treaty which contained a provision, Art. III(1)(a), which, like Art. 2(1) of the treaty here, provided that extradition shall be granted only if "the offence is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year . . . ." Since it had been established at the extradition hearing that these two requirements (i.e. that the act was a crime in the United States and that it was punishable in the manner specified in Art. III(1)(a)) were satisfied by affidavits, nothing turned on the point. That is equally the case here. No issue is raised that the act charged is not a crime in California, or that it is punishable there by less than one year's imprisonment. All that is in issue, as I noted at the outset, is whether it is necessary to prove that the act charged constitutes a crime listed in the treaty under the law of the requesting state. This, McCaffery decided, is not necessary, and so if one accepts Nielsen and McCaffery, that is sufficient to dispose of the present case.

I do not wish, however, to rest my decision on this narrow ground alone, for, with all respect to Lord Diplock, it is not in my view necessary for the extradition judge to be concerned with foreign law at all even in the face of a clause like Art. 2(1) of the present treaty. This is the position taken in the cases that follow.

Lord Diplock's view was struck a glancing blow by the House of Lords in Postlethwaite, supra, at pp. 390-91, a case that involved a clause in the United Kingdom's treaty with Belgium that prohibited surrender unless the crime was "punishable according to the laws in force in both countries". The fugitive was accused of manslaughter in Belgium and it was argued that the expert evidence of a Belgian lawyer, presented at the extradition hearing to show that manslaughter remains a crime in Belgium, had not been presented within two months of the fugitive's arrest as required by the treaty, although an affidavit to fill "the supposed lacuna" had been received in the Divisional Court proceedings. Lord Bridge found this contention wholly devoid of merit. He began his analysis by expressing doubt about whether this was an issue for the magistrate at all, saying at p. 390: "Assuming that this was a matter for the magistrate and not for the Secretary of State, which I doubt but will not take time to consider further . . . ." The reason he found it unnecessary to consider the matter in depth was that, in his view, it could surely be presumed that so serious a crime was punishable. But in any event, he held, there was evidence. That evidence was the Belgian warrant for his arrest, which set forth the nature of the Belgian offence, and a deposition by a Belgian official accompanying the requisition that showed that the offence was contrary to the Belgian Penal Code. Such evidence is, of course, present in the case at bar. What one gathers from Postlethwaite is that the question of whether a crime is one under foreign law is for the Secretary of State to determine on the basis of the material required under the treaty to be supplied with the requisition.

Lord Diplock's obiter statements were firmly rejected by the House of Lords in the recent case (1991) of Sinclair, supra, which adopted the view expressed by Robert Goff L.J. in the Divisional Court in Nielsen, from which Lord Ackner cited in extenso (at pp. 83-85). I shall not repeat the cited passages, which are rather lengthy, but apart from the procedural differences set forth in the Canadian Act to which I have previously referred, they seem to me to be wholly in accord with the scheme of extradition in Canada as I have explained it. This is scarcely surprising. As I have been at pains to note, the British and Canadian Acts are substantially the same, the treaties are the same or similar, and the relationship between the two Acts and the treaties are the same. I might, however, briefly summarize the relevant holdings. The reasons are, of course, couched in terms of the English procedure which, in the general run of things, requires the Secretary of State to consider at the outset whether the conditions for surrender under the treaty are met. If the Secretary of State concludes that these conditions are met, he issues an order to proceed to the magistrate. The magistrate then determines whether there is a prima facie case of conduct which in England would constitute a crime listed in the Schedule to the Act and the treaty. In doing this, the magistrate acts pursuant to English law alone; with the exception of political offences, for which we saw there are special provisions in the Act, the magistrate is "not concerned with foreign law at all" (at p. 84). The task of monitoring the treaty, including whether the requisite materials have been filed to show that the offence is a crime in the requesting state, is for the executive, specifically the Secretary of State. The lawfulness of the executive's action can, the case observes, be challenged by habeas corpus proceedings. The principal difference under Canadian procedure, as we saw, is that the extradition hearing is conducted without the necessity of an order by the executive and it more frequently takes place before the formal requisition. But the executive has the same function of monitoring the treaty, and if at any time the Minister of Justice concludes that the treaty requirements have not been met he or she can discharge the fugitive. There can be no doubt, either, that the lawfulness of the Minister's actions can be reviewed in habeas corpus proceedings and, I would think, by proceedings in the Federal Court.

I have left to the last the only Canadian case in which allusion is made to Art. 2(1), Washington (State of) v. Johnson, decided by this Court in 1988. This case, of course, preceded Sinclair, but it came after Nielsen, McCaffery and Postlethwaite. No mention was made of these cases except for an oblique, and for present purposes irrelevant reference (at p. 344) to Nielsen. Wilson J.'s reference to Art. 2(1) is terse, probably because the case was not really argued in these terms. All Wilson J. directly says about it (at p. 339) is as follows: "This is the double criminality rule, the precise nature of which is in issue on this appeal". When she deals with the application of the double criminality rule, she does not concern herself with whether the crime is one in the requesting state (except under the special procedure relating to convicts to determine whether the crime of which the fugitive was convicted would be one under Canadian law). Still less does she consider whether it should be the extradition judge or the executive that decides the issue of whether the act charged is a crime in the requesting state. She deals solely with the issue of whether the conduct of the accused would constitute a crime in Canada, which is all the Extradition Act, upon which she relied, required her to do. I add that she would have been prepared to commit the fugitive had his impugned conduct amounted to a crime against Canadian law, without reference to United States law. I repeat: all she considered, and this was really the only question before her, was whether the conduct constituted a crime in Canada. She held that this was not established and accordingly concluded that the fugitive should be released. The minority, for its part, found that the particular facts revealed an offence under Canadian law and would have ordered the fugitive's committal on that basis. In short, Wilson J., and for that matter the minority judges, did not really consider whether it was up to the extradition judge, as opposed to the executive, to consider the foreign law side of the concept of double criminality.

As I indicated earlier, I am in entire agreement with the House of Lords decision in Sinclair. After all, it is trite law that a treaty is not self-executing except as to executive functions and matters already provided for by law. If a change in the law is required, this must be effected by statute and an analysis of the statute here shows that there was no intent ‑‑ and generally I may say that would be unusual ‑‑ to grant the power to a judge to monitor the obligations undertaken by sovereign states.

The view that it falls within the extradition judge's authority to examine whether the offence charged was one in the requesting state gives rise to a number of paradoxes. Read alone, the Act appears to be concerned with finding that the offences are punishable according to the law of Canada only. Clauses like Art. 2(1) routinely appeared in treaties from the very inception of the Extradition Act. A perusal of the early treaties, which are reproduced in the Appendix to Piggott, supra, reveals that variations of this clause appear in treaties from a very early stage. It is surprising, then, that an issue of this fundamental nature would not have been provided for in the Act. What is more, if the clause is intended to make such a fundamental departure from what appears in the Act, it raises the question why it does not appear in all the treaties. This question becomes all the more perplexing because there appears to be no pattern by which one can divine why such a clause is included in one treaty and not another. What reason, for example, can one think of for subjecting the United States to more serious constraints than other countries with which Canada has far less close ties? This mystery is compounded by the fact that the original treaty with the United States, Art. X of the 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 (Ashburton-Webster Treaty) (1842), contained no such clause; see Can. T.S. 1952 No. 12. Finally, I note that the present treaty is meant "to make more effective the co-operation of the two countries in the repression of crime".

These apparent anomalies disappear if one takes into account that treaties are contracts between sovereign states and that, except to the extent that the treaty requires a change in the law of the land, they are administered by the executive and its officials. Article 2 does not deal with judicial hearings but with the duty under the treaty to deliver the fugitive according to the provisions of the treaty. If the documents required by Art. 9 are presented it becomes evident enough that the conduct at issue is a crime in the foreign state, as required by Art. 2. But the determination of whether there is a prima facie case of conduct that is a crime in Canada is, of course, one for this country to decide. Given its importance for the freedom of the individual, this duty was assigned by the Extradition Act to an extradition judge, who has the competence to deal with the issue.

There can be no doubt that, even without a clause like Art. 2(1), states would insist on getting material such as that set forth in Art. 9 (e.g., the text of the foreign law and the warrant of arrest) so that, acting through its officials, it can determine whether its obligation to surrender in a particular case is engaged, and the treaties all provide for such material to be supplied with the requisition. What Art. 2(1) does is to make the matter explicit. It really does not much matter, therefore, whether the clause appears in the treaty or not, and as we saw no such clause was inserted in about half the treaties negotiated. As a practical matter, all it appears to add is the requirement that the offence be punishable by imprisonment exceeding one year, a matter that can easily be determined by examining the text of the law the requesting state is required to supply.

Comprehensive Definitions

In the courts below, considerable attention was devoted to broad, comprehensive definitions of double criminality and extradition crimes by specialists in the field. Essentially, these definitions say that for a person to be extradited the act charged must be a crime in the requesting state and be listed or described in the treaty and fall within the name or description in the treaty as understood in the requesting state, and it must also be a crime in the requested state that falls within the name or description of a listed crime in the requested state. These broad definitions (descriptions would be a better word) are not directed solely at the role of the extradition judge, but constitute attempted descriptions of the general theory behind the whole process ‑‑ prosecutorial, diplomatic and judicial. Viewed from that perspective, the definitions are basically sound and are useful as expository tools. Thus the act must be a crime in the requesting country. Why would it prosecute otherwise? That originally is a matter for the prosecuting authorities and ultimately for the courts of the demanding state, here the United States. Similarly, officials in the State Department in the United States must conclude that the act charged falls within the treaty according to the laws of that country. They are unfamiliar with our laws. The requested state will naturally wish to monitor the treaty to ensure that its obligations are engaged, and for that purpose the requesting state is required by the treaty to supply documentation enabling the requested state to do so. The act charged must also be a crime in the requested state, Canada, that is listed or described in the treaty according to our law ‑‑ the so-called double criminality rule. This is the component ‑‑ and barring express provision, the only component ‑‑ of the comprehensive definition of extradition crime that is left to be decided by the extradition judge. That jurisdiction is assigned to the extradition judge by s. 18 of the Extradition Act. That function, as I noted, is very limited, but critically important. It ensures that no one shall be extradited from this country unless a judge is satisfied that person has been convicted of an act (or there is prima facie evidence that he or she has committed an act) that, if it had occurred in this country, would be a crime here that is described in the treaty. The notion that the extradition judge should be concerned with foreign law, and so determine all the questions involved in the theoretical description of the process of extradition, results from the fallacy that originally began with the practice adopted in Re Bellencontre and Re Arton (No. 2), supra, for which, as Lord Diplock noted, no justification was offered. The editor of La Forest's Extradition, 3rd ed., Anne W. La Forest, succinctly describes the role of the comprehensive definition there given as follows, at p. 51:

The foregoing discussion is at the level of general principle. It says nothing about process, more specifically about what institution or body determines whether any of the components in the above definition has been satisfied. For many years, the leading authorities appeared to indicate that the judge at an extradition hearing was involved in each of these components. This misconception, for that is what it was, is of respectful antiquity, dating back to two well-known late nineteenth century cases, Re Bellencontre and Re Arton (No. 2), and particularly the latter.

She makes it clear throughout that all the extradition judge is concerned with is to determine that there is prima facie evidence that the conduct with which the accused is charged in the requesting state would, if committed in Canada, constitute a crime listed in the treaty.

I might perhaps be permitted to add that in preparing the earlier editions of that work in a pre-Nielsen context, I could not ignore what appeared to be the dominant (in England the accepted) approach arising from Bellencontre and Arton (No. 2), but it can scarcely be said that I thought the approach was correct. I argued on similar lines as I have adopted in these reasons that proof of foreign law was not required by the Act, and that if the course I suggested were adopted it would considerably simplify the substantive law (including the elimination of problems such as the one that has arisen in the present case); see 1st ed., pp. 37, 72; 2nd ed., pp. 52, 109-110. The matter may not have been of as much concern in the more leisurely period when the approach in Bellencontre and Arton (No. 2) was dominant and extradition cases were few. But extradition is today very frequently sought. And with the exponential growth of international crime that has since taken place, it would now be an easy task for criminal enterprises to frustrate the operation of the extradition laws, mutually set up by states to combat criminal activities, by flying in a battery of experts on foreign law whenever one of the entrepreneurs in these unsavoury operations was in danger of being brought to justice. Sopinka J. suggests that proof of foreign law is made in many trials involving transnational activities. But extradition proceedings are not trials. They are intended to be expeditious procedures to determine whether a trial should be held; even the evidence against the fugitive is presented in writing without the benefit of cross-examination.

I have thus concluded that the evidence of foreign law in the present case should not have been admitted by the extradition judge and was irrelevant. The issue of whether the act charged was a crime under United States law was for the prosecutors in the United States to decide, and it was for them and the U.S. State Department to assess whether in their view it came within the treaty, subject to monitoring by Canada pursuant to the treaty. The monitoring task has not, for good reason, been assigned to the extradition judge, so it remains with the executive. Barring the possible exception of political offences, only one task has been assigned to the judiciary, but it is an important one ‑‑ the task of assessing whether there is sufficient evidence that the alleged offence would, if committed in Canada, constitute a crime mentioned in the treaty. That is the duty conferred upon the extradition judge by the Extradition Act.

I might add that the evidence of American law in this case was not only irrelevant; it was misplaced. The issue is not whether the crime charged is called forgery or not in either country, but whether the conduct charged can fairly be said to fall within the expressions "forgery" and "conspiracy" in the treaty. In considering this issue, it must be remembered that the crimes listed in the treaty are not to be interpreted according to the niceties of the applicable legislation of either country. Rather they are described in compendious terms to catch broad categories of conduct; see La Forest's Extradition, 3rd ed., at p. 76, and the cases there cited. In other words, extradition crimes are described in a comprehensive and generic sense. No doubt if the American authorities proceeded on too broad a basis, the matter could be raised at the diplomatic level. As Lord Ackner noted in Sinclair, supra, at p. 89, the task of monitoring the treaties is an executive, and not a judicial, function. However, I must say that it would lie ill in the mouth of Canada to say to the United States that the act charged does not fall within the genus of forgery, when in this country it falls within the definition of forgery under Canadian law. I fail to understand why the fugitive would be better protected if the crime was also specifically called forgery in the United States. As has frequently been stated, it is the essence of the offence that is important; see, for example, Cotroni v. Attorney General of Canada, 1974 CanLII 210 (SCC), [1976] 1 S.C.R. 219, at p. 222.

What has just been said is consistent with the frequently repeated principle that the fine or nice distinctions of criminal law are out of place in the law of extradition. This Court put the matter bluntly in Mellino, supra, at p. 551:

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.

To act differently here would take us back to the approach followed in England in the 19th century when the judges by a strict and narrow interpretation frustrated the operation of the few extradition treaties it had entered into. The British Act of 1870, on which ours is modelled, was intended to change this approach. Lord Diplock explains this in Nielsen, supra, at pp. 614-15. He states:

It is, however, appropriate at this juncture to draw attention to the fact that when one is describing crimes committed in a foreign state that are regarded in the United Kingdom as serious enough to warrant extradition of an offender by whom they have been committed, one is describing the way in which human beings have conducted themselves and their state of mind at the time of such conduct. Since conduct of those kinds consists of wicked things that people do in real life it is possible to describe them either in broad generic terms and using popular language, or in varying degrees of specificity, as had been done in minute detail, nine years before the Act of 1870 itself was passed, in the five Acts that had been passed in 1861, consolidating and amending the statute law of England relating to criminal offences of larceny, malicious injuries to property, forgery, coinage and offences against the person respectively. These Acts condescended to minute detail in their descriptions of numerous distinct offences included within the broad genus of crimes with which, as their titles indicate, each Act dealt. Between them the five Acts ran into 380 sections.

The 1870 list uses the former technique. It describes each of the list of 19 "extradition crimes" in general terms and popular language, irrespective of whether (as the introductory words of Schedule 1 to the Act of 1870 make clear) the conduct described is rendered criminal by common law or by statute made before or after the passing of the Act of 1870. So the 1870 list covered all offences under the five consolidating and amending Acts of 1861 that fell within any of the 19 genera of conduct described in the list; and also any criminal offence created by any subsequent statute but only if it fell within a described genus. [Emphasis in original.]

As noted earlier, barring specific exceptions, it is beyond the jurisdiction of an extradition judge to examine foreign law, and, apart from the present, I know of no case where there has been a refusal to commit because it had not been established before the extradition judge that the act charged was a crime listed in the treaty as interpreted under foreign law. It would be ironic if this were to be done at this late juncture in respect of a treaty entered into "to make more effective the co-operation of the two countries in the repression of crime". Particularly is this so when states are moving away from including a list of crimes in treaties but rather agree to surrender for any criminal act of which a person is charged in the requesting state if it is also a crime in the requested state. Canada and the United States have now entered such a "no list" treaty; see Can. T.S. 1991 No. 37. This development comes from a realization that what is really important is that a person should not be surrendered to another country for conduct that is not considered a serious crime in the requested country. If that basic and important task is done, and prosecution for other offences is barred following surrender, I see no reason to complicate the extradition process by requiring proof of foreign law before the extradition judge. The monitoring of the treaty to ensure compliance by the foreign state with the treaty obligations can safely be left to the executive, as the Canadian scheme of extradition contemplates. It should be observed, however, that Art. 2(1) in the new treaty is much the same as in the treaty at issue here: if my colleague's view of that provision is accepted, then, the contracting parties have not yet succeeded in avoiding proof of foreign law at the extradition hearing.

Disposition

Dohm J. concluded that there was evidence of conduct in the United States that would be sufficient to commit the accused for the crimes of conspiracy and forgery under the law of Canada, crimes listed in the treaty. This he held was sufficient to warrant the committal of the respondent, and he refused to consider evidence of United States law. He therefore ordered the committal of the respondent for surrender. In doing this he was, in my view, perfectly right. I would therefore allow the appeal, set aside the decisions of the Court of Appeal and the judge on habeas corpus, and restore the order of committal.

II

United States of America v. Charles Julius McVey (21751)

The judgment of La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by

//La Forest J.//

La Forest J. -- This appeal raises the same basic issue as the companion case between the same parties, issued concurrently, i.e., whether in an extradition hearing it is necessary to prove that the act charged constitutes a crime listed in the extradition treaty under the law of the state requesting the surrender of the fugitive.

The respondent was indicted by a grand jury in the United States District Court for the Northern District of California on January 26, 1988. Counts 5 through 12 of the indictment charged that McVey, in concert with others, knowingly and intentionally devised and participated in a scheme to defraud Saxpy Computer Corporation of, inter alia, "its right to the exclusive use of its property, to wit, confidential, proprietary information regarding the design and operation of the Saxpy Matrix-1 Super Computer", which scheme was executed by the use of "wire communication". The use of the interstate telephone system brought the offences into United States federal jurisdiction.

Extradition proceedings to secure the surrender of the respondent to the United States were initiated in the Supreme Court of British Columbia and an extradition hearing was held before Macdonell J. There was, in his view, ample evidence to have warranted a committal for trial if the offence had been committed in Canada. The comparable crime in Canada was contained in what is now s. 380 of the Criminal Code, R.S.C., 1985, c. C-46 (then s. 338), which prohibits everyone from defrauding by deceit, falsehood or other fraudulent means, the public or any person of any property, money or valuable security. Macdonell J. found that this offence, or at least a conspiracy to commit it, was listed in the Canada-United States extradition treaty, apparently under item 27, i.e., use of a means of communication in connection with schemes to defraud the public or for the purpose of obtaining property by false pretences. The relevant point for our purposes is that he also heard and accepted the evidence of an expert on United States law to the effect that while the grand jury court indictment referred to defrauding the Saxpy Computer Corporation, nevertheless Saxpy was under American law a member of the public, thereby bringing the charge within the language of the treaty. In the result, all conditions for the extradition of the respondent were made out and Macdonell J. ordered his committal for surrender.

On an application for a writ of habeas corpus with certiorari in aid, Paris J. expressed substantial agreement with Macdonell J. On the appeal to the British Columbia Court of Appeal, that court agreed that the respondent's conduct would constitute a crime in Canada, but differed with the courts below on the United States law. In its view, the expert evidence did not establish that the accused could be convicted in that country of a scheme to defraud the public when the evidence was that the scheme was aimed at one person, the Saxpy corporation. The expert witness, it stated, had never spoken directly on that issue. In the absence of proof of foreign law, the court held that such law must be presumed to be the same as Canadian law, and in its view Canadian law would not regard one corporation as "the public". Consequently, the respondent's conduct did not fall within item 27 of the crimes listed in the treaty under the law of the United States.

On the appeal to this Court, the appellant's major ground is that the Court of Appeal erred in holding that an extradition crime must be listed in the treaty according to the law of the United States as well as according to Canadian law. For the reasons set forth in the companion case, the appellant is entitled to succeed on this ground. The appellant established a prima facie case of an extradition crime, i.e., conduct that if committed in Canada would be a crime listed in the treaty according to the law of Canada. That being so, the extradition judge was required to commit the respondent under s. 18(1)(b) of the Extradition Act, R.S.C., 1985, c. E-23, read in conjunction with s. 2 (the definition of an "extradition crime") and s. 34. The procedure mandated by these provisions protects the accused against being surrendered to another country for conduct not regarded as criminal in Canada. Along with the treaty provision that the offence for which the fugitive is surrendered is the only offence for which, under the treaty, he can be prosecuted in the requesting state, the accused is adequately protected. As such, there is no point to a review of foreign law by the extradition judge, and as Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, at pp. 554-55, reminds us, it is not the business of that judge to assume responsibility for reviewing the decisions of the officials and judicial authorities in the foreign state.

Having come to this conclusion on the major ground of appeal, it becomes unnecessary, indeed inappropriate, to consider the issue regarding the conflict of opinion between the Court of Appeal and the extradition and habeas corpus judges over the interpretation of United States law. The several other subsidiary issues raised by the respondent were summarily dismissed from the Bench.

I would allow the appeal, reverse the decision of the Court of Appeal and restore the order of committal.

Appeals allowed, Lamer C.J. and Sopinka and McLachlin JJ. dissenting.

Solicitor for the appellant: John C. Tait, Ottawa.

Solicitors for the respondent: Farris, Vauchan, Wills & Murphy, Vancouver.