Commonwealth of Virginia (Applicant)
v.
Leslie Cohen (Respondent)
Trial Division, Heald J.—Ottawa, May 31 and
June 1, 1973.
Extradition—Mandamus—Right of fugitive to bail pending
hearing.
C was held in custody in Ontario pending an application
for his extradition to Virginia on a charge of larceny. The
extradition judge rejected an application for bail under
section 457(1) of the Criminal Code.
Held, dismissing an application for mandamus, the tran
script of the record of the proceedings before the extradition
judge was incomplete and did not indicate his reasons for
his decision.
APPLICATION.
COUNSEL:
J. L. D. King for Commonwealth of
Virginia.
A. D. Gold for Leslie Cohen.
SOLICITORS:
MacDonald and Affleck, Ottawa, for Com
monwealth of Virginia.
Pomerant, Pomerant and Greenspan,
Toronto, for Leslie Cohen.
HEALD J.—This is an application under sec
tion 18 of the Federal Court Act for a writ of
mandamus directed to His Honour Judge T. J.
Jacob, Judge of the County Court for the
County of Middlesex, Ontario, to proceed in
accordance with section 457 of the Criminal
Code of Canada, R.S.C. 1970, c. C-34, and
related sections in respect of the detention of
the applicant pending the determination of the
application for extradition.
Counsel for the applicant submitted that, on
the basis of the evidence before me, I should
conclude that the learned County Court Judge
erred in not proceeding in accordance with the
bail procedure provisions of section 457 of the
Criminal Code and in particular section 457(1)
and section 457(7) which read as follows:
457. (1) Where an accused who is charged with an
offence other than an offence mentioned in section 457.7
and who is not required to be detained in custody in respect
of any other matter is taken before a justice, the justice
shall, unless a plea of guilty by the accused is accepted,
order that the accused be released upon his giving an
undertaking without conditions, unless the prosecutor,
having been given a reasonable opportunity to do so, shows
cause why the detention of the accused in custody is justi
fied or why an order under any other provision of this
section should be made.
(7) For the purposes of this section, the detention of an
accused in custody is justified only on either of the follow
ing grounds, namely:
(a) on the primary ground that his detention is necessary
to ensure his attendance in court in order to be dealt with
according to law; and
(b) on the secondary ground (the applicability of which
shall be determined only in the event that and after it is
determined that his detention is not justified on the pri
mary ground referred to in paragraph (a)) that his deten
tion is necessary in the public interest or for the protec
tion or safety of the public, having regard to all the
circumstances including any substantial likelihood that the
accused will, if he is released from custody, commit a
criminal offence involving serious harm or an interference
with the administration of justice.
I have considerable doubt that the bail provi
sions of the Criminal Code have application to
extradition proceedings. (See for example: Re
Stern 7 C.C.C. 191; United States v. Weiss 8
C.C.C. 62.)
The authority for the proceedings before the
learned County Court Judge is contained in the
Extradition Act, R.S.C. 1970, c. E-21.
Learned counsel submits that by virtue of
section 13 of the Extradition Act, the learned
Judge was obliged to follow the provisions of
section 457 of the Criminal Code. Section 13
reads as follows:
13. The fugitive shall be brought before a judge, who
shall, subject to this Part, hear the case, in the same manner,
as nearly as may be, as if the fugitive was brought before a
justice of the peace, charged with an indictable offence
committed in Canada.
His submission is that since section 13 pro
vides that the hearing before the extradition
judge shall be conducted in the same manner, as
nearly as may be, as a preliminary hearing of an
indictable offence under the Criminal Code, that
since the bail provisions of the Criminal Code
apply to a preliminary hearing, they should also
apply to the extradition hearing.
In my view, this position is open to serious
question. The provisions of the Criminal Code
of Canada (including section 457) apply to a
person charged with a specific offence under
said Code. In the case at bar, the applicant is not
such a person. He is charged with the offence of
larceny in the Commonwealth of Virginia, one
of the United States of America.
Section 13 of the Extradition Act merely pro
vides for the procedure at the hearing, that is,
once the hearing has commenced. It seems to
me that a bail application is a collateral matter
and that if Parliament had intended the provi
sions of the Criminal Code to apply in other
related matters, it would have said so by apt
language.
However, assuming for the sake of argument
that section 457 of the Criminal Code is applic
able to these proceedings, I have the view that
the material before me is not sufficient to estab
lish that the provisions of said section were not
complied with. There is before me a document
which purports to be a transcript of the pro
ceedings before His Honour Judge Jacob at
London, Ontario on May 15, 1973.
Said transcript records submissions made to
Judge Jacob by counsel for the applicant in
respect of the bail application. He then called on
counsel for the Commonwealth of Virginia to
make representations. Apparently said counsel,
Mr. King, did make fairly extensive representa
tions. However, the transcript before me does
not record those submissions. At page 4 thereof,
the following note appears:
Reporter's Note: At this point submissions were made by
Mr. King.
Counsel were not able to explain why the
reporter did not record said submissions.
Mandamus lies to secure the performance of
a public duty. The applicant must show that he
has demanded performance of the duty and that
performance has been refused by the authority
obliged to discharge it. I am asked to order
mandamus on the basis of an incomplete and to
some extent inaccurate record' of what took
place at the proceedings in question.
Section 457(1) of the Criminal Code makes
provision for reasonable opportunity being
given to the prosecutor to show cause why the
accused should be detained in custody. In the
hearing before me, there was some suggestion
that reasonable opportunity may not have been
given. However, without a full transcript of
what took place, I am not in a position to
determine what considerations entered into the
learned Judge's decision not to grant bail nor
whether there was compliance with the provi
sions of section 457(1) and section 457.7 of the
Code. I am not prepared to say on the evidence
before me that the learned County Court Judge
refused to discharge the duty imposed on him
under section 457 of the Code.
The application is therefore dismissed with
costs.
' At the bottom of page 4 of the transcript, Judge Jacob is
reported as saying "I am prepared to get into the issue as to
whether or not any bail sections of the Code are to hold in a
matter such as this." Counsel for the applicant says that the
transcript is in error, that the learned Judge actually said "I
am not prepared ..."
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.