Supreme Court of Canada, 1874.

Extradition case.

In re Israel Rosenbaum.

Ramsay, Jr.

On demand for extradition by the Government of the United States of America. Before proceeding to adjudicate on the merits of this application, I must dispose of a question raised while the evidence was being taken, the decision of which was reserved till after the final hearing.

The district attorney for the State of New York, being called as a witness by the prosecution, is asked on cross-examination on the part of the prisoner, “Is there any provision in the law of the United States, or in that of the State of New York, prohibiting the trial of the person extradited for any other crime than that for which he is so extradited?”

On the part of the Government of the United States, it is objected that this question is irrelevant; Mr. Kerr, for the prisoner, cites sec. 27 of the extradition act, passed in 1870, (33 and 34 Vict., cap. 52.)

The section in question reads as follows: “The acts specified in the third schedule to this act are hereby repealed as to the whole of Her Majesty’s dominions, and this act (with the exception of anything contained in it which is inconsistent with the treaties referred to in the acts so repealed,) shall apply (as regards crimes committed either before or after [Page 617] the passing of this act,) in the case of the foreign states with which those treaties are made, in the same manner as if an order in council referring to such treaties had been made in pursuance of this act, and as if such order had directed that every law and ordinance which is in force in any British possession with respect to such treaties should have effect as part of this act.”

This raises the whole question as to what law governs extraditions in Canada, and whether our statute respecting extraditions on the demand of the Government of the United States of America is repealed, and if not, to what extent it is in force.

The first enactment of section 27 is perfectly simple. It repeals the act under the French treaty, both the acts under the treaty with the United States, the act of giving effect to the extradition convention with the King of Denmark, and act for the amendment of the law relating to treaties of extradition in 1866, (29 and 30 Vict., cap. 121.) The difficulty arises with regard to the construction of the second member of the section.

In order fully to understand the scope of the question raised, it is necessary to observe that by the form of expression used in the previous parts of the act, and notably in sections 2, 4, and 5, it would seem as though it were not intended to apply the act in any degree until the foreign countries with which treaties existed had, either by law or by arrangement with Her Majesty, recognized those principles.

If the statute had gone no further than this, the effect of these enactments would have been to sweep away the whole of the imperial acts, giving effect to extradition with every foreign country. This could not have been contemplated, and the necessity of avoiding such a result gives us the key of the second part of section 27, which thus becomes clear.

The act of 1870, except in so far as it is inconsistent with the treaties referred to in the acts enumerated in the third schedule, that is with the treaties with France, with the United States, and with Denmark, shall apply as if an order in council referring to such treaties had been made in pursuance of this act, and if such order had directed that every law and ordinance which is in force in any British possession with respect to such treaties should have effect “as part of this act.”

The effect, then, of these treaties is saved, (1,) for all Her Majesty’s dominions; (2,) colonial legislation is saved, but to what extent? Colonial legislation is to be read as part of the act of 1870, and the act of 1870 is only to apply in so far as it shall not be inconsistent with the treaties with France, with the United States, and with Denmark.

I may observe, en passant, that the act of 1870 seems to affect section 132 of the British North America act of 1867, by which the parliament and government of Canada is granted “all power necessary or proper for performing the obligations of Canada, of any province thereof, as a part of the British Empire, toward foreign countries, arising under treaties between the empire and such foreign countries.” At least it has hitherto been supposed that this section gave the Canadian parliament power to legislate on treaty questions, and it was on this understanding our extradition act of 1869 was passed.

I may further observe that if there had been any order of the Queen or council suspending the operation of the act in Canada, as provided in section 18, all this difficulty would have been avoided, but I am informed officially that no such order exists. I must, therefore, at each step decide what part of our act is not inconsistent with so much of the act of 1870 as is consistent with the treaties mentioned in the third [Page 618] schedule, that is, the treaties with France, with the United States, and with Denmark, This may become a very involved operation; but, as the question is now raised, I see no other mode of dealing with it. I am confirmed, too, in the view I take by the case of Foster, so far as it goes. There it was urged at the last moment that our legislation was repealed by the imperial act of 1870, and this pretension was negatived by the unanimous judgment of the court, and, I may add, I think rightly. In the present case it only requires me to decide whether there is any necessity for the proof of the existence of a special law in the United States to the effect that a prisoner extradited for one offense cannot be tried for another unless he has had an opportunity of leaving the jurisdiction. Is this exaction of the act of 1870 inconsistent with the treaty with the United States? On the part of the prisoner, Mr. Kerr has urged with great ingenuity that the provisions of subsections 1 and 2 of section 3 are not inconsistent with the old treaties, and that they are, therefore, in force; and that, until there is an order in council under section 5 which will of itself settle the fact as to whether subsection 2 has been complied with, the existence of the foreign law or arrangement must be proved. He further says, in support of the proposition that subsection 2, section 3, is not inconsistent with the old treaties, that the trial of a prisoner remanded for any other crime than that mentioned in the demand is a violation of international law.

Notwithstanding the plausibility of this reasoning, it fails to convince me. In the first place it goes too far; for if it were recognized as a principle of international law that a prisoner extradited could only be tried for the crime for which the extradition took place, it would not have been necessary for the Imperial Parliament to make these provisions, and it would not be necessary to ask this question. I am not, however, aware that it has been laid down in England that a man once within the jurisdiction of English courts could set up the form of his arrest, or the mode by which he came into custody, as a reason for his discharge when accused of a crime. But even were this otherwise, it is not the international law that it is sought to prove, but the special requirements of a new statute.

Now I cannot conceive how a new provision of the act of 1870 could be consistent with the treaties with France, the United States, and Denmark, entered into years before. Being of this opinion, I do not think the 1st and 2d subsections of section 3 can be considered in force until there is an order in council proclaiming them. I am officially informed that there is no such order.

A case of Bouvier, Law Journal Reports, vol. 42, part 2, new series, has been cited to establish that though there was no order in council proclaiming that the act of 1870 applied in its entirety to France, that still it was necessary to show by evidence that by the law of France the French government would not try the prisoner for any offense other than that for which the demand in extradition had been made. It seems to me that the case cited does not maintain the proposition. The judges in England did not decide the point raised here. They admit its difficulty and speak of the complicated and obscure language of section 27, and they discharged the rule on the ground that there was evidence that by the law of France the prisoner surrendered cannot be tried for any other offense, and, consequently, that it was not necessary for the court in that case to interpret section 27. Mellor, J., said, however, that he was inclined to agree with the argument of the attorney-general, which seems to me to express the same view of section 27 which I take. Mr. Kerr insisted strongly that the chief-justice and Mr. Justice [Page 619] Blackburn would not have said that they considered the provision of subsection 2, section 3, complied with, unless they thought it was in force. But by the context we see clearly that they do not decide whether it was in force or not, but, that if in force, it was complied with. Whether it was in force or not depends on the interpretation of section 27, on which they did not enter. The two points raised by the attorney-general are these: (1.) Subsection 2 is not in force. (2.) If it is, its provisions have been complied with. The court adjudicated on the last point only.

No more recent case in England has been brought under my notice, and there has not been any modification of section 27. Under the circumstances, I may be permitted to say that the obscurity of the language of the statute appears to me to result from the complication of the system to be introduced, rather than from any defect of phraseology. Whether that complication is desirable or necessary, I am not called upon to determine. It is sufficient for me to interpret the statute as I find it, and about the question before me I have no doubt or difficulty.

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