A-130-74
In the matter of the Extradition Act and in the
matter of the request for extradition of Raymond
George Shephard by the United States of America
Court of Appeal, Jackett C.J., Pratte J. and
Hyde D.J.—Montreal, September 25, 1974.
Judicial review—Extradition—Refusal of warrant—Insuf-
ficient evidence—Refusal upheld—Federal Court Act, s. 28—
Extradition Act, R.S.C. 1970, c. E-21, s. 18.
A section 28 application was made to set aside an extradi
tion judge's refusal of a warrant, upon finding the evidence
insufficient to "put the accused to his defence on the basis
thereof".
Held, it had not been established that, on a fair reading,
the extradition "judgment" was not a proper application of
the powers vested in the judge under section 18 of the
Extradition Act. There was no distinction between this case
and that of Puerto Rico v. Hernandez [1973] F.C. 1206.
APPLICATION.
COUNSEL:
L. P. Landry, Q.C., for applicant.
Sidney Leithman and David Linetsky for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Blaise & Leithman, Montreal, for respond
ent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application
to set aside a refusal by an extradition judge to
issue a warrant under section 18 of the Extradi
tion Act,' which requires him inter alla to issue
a warrant "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."
1 R.S.C. 1970, c. E-21.
No authorities that aid us directly in the inter
pretation of this section have been cited to us.
I agree with the extradition judge that one
type of case where an extradition judge should
refuse to grant such a warrant is where a trial
judge would feel obliged to direct a jury to bring
in a verdict of acquittal and I agree, also, that
"where the Crown's evidence is so manifestly
unreliable or of so doubtful or tainted a nature
as to make it dangerous or unjust to put the
accused to his defence on the basis thereof" is
such a case. I do not accept the submission that
the latter proposition is restricted to a case of
circumstantial evidence.
In spite of his reference to judicial dicta
where opinions concerning particular factual sit
uations have, as it seems to me, been stated as
though they were laying down legal principles of
general application, which go further than the
law may go, counsel for the applicant has not
convinced me that a fair reading of the extradi
tion judge's "Judgment" establishes that it is not
a proper application of the powers vested in him
by section 18 as already discussed. I am also of
opinion that there is no fair distinction in princi
ple between this case and Puerto Rico v.
Hernandez 2 ; but I must not be taken as express
ing any general opinion or enunciating any new
principle concerning affidavits such as the one
that was under consideration by the extradition
judge.
For the above reasons, I am of opinion that
this section 28 application should be dismissed.
* * *
PRATTE J. concurred.
* * *
HYDE D.J. concurred.
2 [1973] F.C. 1206.
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.