In the Matter of an Application for an Arrest Warrant under the Extradition Act

Date: 2020-11-10 Superior Court of Justice - Ontario

Re: In the Matter of an Application for an Arrest Warrant under the Extradition Act

Before: R.F. Goldstein J.

Counsel: Kandia Aird, for the Attorney General of Canada

Heard: In Writing

Endorsement

[1] The Attorney General requests a warrant for the arrest of a person sought in the United States for fraud. The United States has submitted the Record of the Case. The Minister of Justice has issued an Authority to Proceed.

[2] The warrant sought by the Attorney General is in form 7.01 under s. 529(1) of the Criminal Code. This type of warrant is commonly known as a Feeney warrant: R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13. A Feeney warrant permits the police to enter a dwelling house to effect an arrest.

[3] There is a distinction between a provisional arrest pursuant to s. 13 of the Extradition Act, and process issued pursuant to s. 16 of the Extradition Act. The main difference is that s. 16 process applies after the requesting state has submitted the Record of the Case and the Minister has issued the Authority to Proceed, which is what has occurred here.

[4] Section 16(3) of the Extradition Act is clear that a judge shall issue a summons, or a warrant in accordance with s. 507(4) of the Criminal Code, which states:

(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.

[5] In other words, the Attorney General must make out a case for the issuance of a warrant, as opposed to a summons: Re: Canada (Attorney General), 2006 CarswellQue 1204, 2006 QCCS 704 (Sup.Ct.) at para. 9.

[6] It is obvious to me that process should issue to compel the appearance of the person sought. It is less obvious that an arrest warrant should be issued, let alone a warrant to permit the police to effect the arrest in the person’s home. The person sought is a Canadian citizen. She lives in a house that she owns with her husband. There is no other information in the affidavit of the officer that suggests an arrest warrant generally or a Feeney warrant in particular is required.

[7] The application for an arrest warrant is dismissed without prejudice to the right of the Attorney General to submit new evidence and to bring a further application.

Date: November 10, 2020